THE  GOVERNMENT  OF  THE 
BRITISH  EMPIRE 


Other  Works  by 

the  Same  Author 

A  Short  History 

of  the  Australa- 

siAN  Colonies. 

The  Government 

OF  Victoria  (Aus- 

tralia). 

A  Short  History 

OF  Politics. 

Law    and    Politics   in   the   Middle 

Ages. 

An  Outline  of  English  Local  Gov- 

ernment. 

A  Short  History 

of  English  Law. 

THE  GOVERNMENT 

OF  THE 

BRITISH  EMPIRE 


BY 


EDWARD  JENKS,  M.A.,  B.C.L 

Principal  and  Director  of  Legal  Studies  of  the  Law  Society; 
formerly  Reader  in  English  Law  in  the  University  of  Oxford,  Tutor 
of  Balliol  College,  and  Fellow  of  King's  College,  Cambridge  ;  at  one 
time  Dean  of  the  Faculty  of  Law  in  the  University  of  Melbourne 


(M6r4-k£FER-n 


SWVAD  •  Q3S 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

1918 


Copyright,  1918, 
Bt  Edward  Jenks. 


All  rights  reserved 


TO  THE 

Pelobeb  iWemorp 

OF 

"ALAN" 

(MAJOR  ALAN  ROBERT  CONSTANTINE  JENKS, 
B.Sc.  M.C.,  R.E.) 

Who  gave  his  life  for  the  Empire 
in  his  twenty-seventh  year 


PREFACE 

It  is,  perhaps,  needless  to  say,  that  this  book  is  not  in- 
tended to  compete  with  the  standard  works  on  the  Consti- 
tution which  have  been  produced  by  eminent  writers,  such 
as  the  late  Sir  William  Anson,  the  late  Bishop  Stubbs,  or 
Professor  Dicey,  happily  still  with  us.  Still  less  does  it  claim 
to  rival  the  classical  monographs  on  the  various  aspects  of 
the  Constitution  which  are  the  work  of  experts  in  the  strict 
sense.  It  is  written  only  in  the  hope  that  those  who  have  not 
yet  the  leisure,  or  who  have  not  yet  arrived  at  the  age,  to 
appreciate  these  larger  works,  will  be  enabled  by  it  to  look 
forward  to  that  advantage  at  a  later  date.  And  the  immedi- 
ate prospect  of  a  largely  increased  electorate,  combined  with 
the  great  stimulus  of  interest  in  problems  of  government  pro- 
duced by  the  war,  would  seem  to  make  that  hope  reasonable. 

For  the  many  defects  of  the  book,  the  writer  will  not  apolo- 
gize; for  he  knows  that  critics  best  able  to  appreciate  the 
difficulty  of  writing  it,  will  be  the  readiest  to  forgive  them. 
He  will  merely  deprecate  the  suggestion  that  the  book  is  a 
"  precis  "  of  larger  treatises.  So  far  as  it  goes,  it  is  original 
both  in  plan  and  execution,  and  from  first-hand  material. 
For  neither  plan  nor  execution  is  any  one  but  the  writer 
responsible. 

Nevertheless,  it  is  the  writer's  keen  pleasure,  as  well  as  his 
bounden  duty,  to  tender  his  grateful  thanks  to  those  ac- 
quaintances and  friends  who  have  been  ungrudging  with 
their  help  on  the  matters  upon  which  he  has  appealed  to 
them.  Particularly  great  is  his  debt  to  Sir  Almeric  FitzRoy, 
K.C.B.,  Clerk  of  the  Privy  Council,  Mr.  F.  A.  Hyett,  B.A., 
J.  P.,  Chairman  of  Quarter  Sessions  for  Gloucestershire,  Sir 
Courtenay  Ilbert,  G.C.B.,  Clei'k  of  the  House  of  Commons, 


viii  PREFACE 

Mr.  O.  E.  Niemeyer,  of  The  Treasury,  and  Sir  Ernest  Tre- 

velyan,  Reader  in  Indian  Law  at  Oxford,  formerly  Judge  of 

the  High  Court  at  Calcutta,  who  have  placed  their  great 

experience  of  special  subjects  freely  at  his  disposal.     If  the 

writer  has  failed  to  profit  as  he  should  have  done  by  their 

help,  the  fault  is  his,  not  theirs ;  and  he  is  alone  to  blame  for 

errors,  while  such  merit  as  may  be  found  in  the  book  is  due 

mainly  to  them. 

Edward  Jenks. 
9  Old  Square, 

Lincoln's  Inn,  W.C.2 
January,  1918. 


CONTENTS 


CHAPTER  PAGE 

I  The  King-Emperor 1 

II  The  Constitutional  Monarchy 21 

III  The  Territories  of  the  Empire:    The  United 

Kingdom    and    the    Self-Governing    Do- 
minions    42 

IV  The  Territories  of  the  Empire  (continued) :  The 

Crown  Colonies  and  British  India    ...  68 

V  The  Imperial  Cabinet      93 

VI  The  Imperial  Parliament  (Structure)  ....  117 

VII  The  Work  of  The  Imperial  Parliament  .    .    .  141 

VIII  The  Fighting  Services 165 

IX  The  Treasury  and  the  Secretaries  of  State  .  196 
X  The  Individual  Offices  and  the  Newer  De- 
partments       219 

XI  The  King's  Courts  of  Justice 246 

XII  The  Established  Churches 284 

XIII  Local  Government  (The  Smaller  Units)     .    .  303 

XIV  Local  Government   (continued):  The  Counties 

and  Boroughs     325 

Index      361 


A  TABLE  OF  BRITISH  REGNAL  YEARS 

Sovereigns  Commencement   of   Reign 

William    I October  14,  1066 

WiUiani     II September  26,  1087 

Henry    I August  5,  1100 

Stephen     December  26,   1135 

Henry    II December   19,   1154 

Richard    I September    23,    1189 

John     ..May  27,  1199 

Henry  III   October  28,  1216 

Edward   I November  20,   1272 

Edward   II July  8,   1307 

Edward    III January   25,   1326 

Richard    II June  22,  137T 

Henry    IV September  30,   1399. 

Henry    V March   21,   1413 

Henry    VI September   1,    1423 

Edward    IV March  4,  1461 

Edward   V April  9,   1483 

Richard    III June  26,  1483 

Henry    VII August    22,    1485 

Henry    VIII ..April  22,  1509 

Edward    VI January   28,  1546 

Mary    July  6,  1553 

Elizabeth     November  17,  1558 

James    I March  24,  1603 

Charles    I March  27,  1625 

The   Commonwealth    January  30,  1649 

Charles    11^ May  29,  1660 

James    II February  6,  1685 

WiUiam  and  Mary   Februnry  13,  1689 

Anne    March  8,  1702 

George    I August  1,  1714 

George    II June  11,  1727 

George  III October   25,    1760 

George  IV January  29,  1820 

William    IV June    26,    1830 

Victoria June  20,  1837 

Edward   VII January  22,  1901 

George  V May  6,  1910 

*  Although  Charles  II.  did  not  ascend  the  throne  until  29th  May,  1660, 
his  regnal  years  were  computed  from  the  death  of  Charles  I.,  January 
30,  1649,  so  that  the  year  of  his  restoration  is  styled  the  twelfth  year  of 
his  reign. 


THE  GOVERNMENT  OF  THE 
BRITISH  EMPIRE 

CHAPTER    I 
THE    KING-EMPEROR 

At  the  head  of  the  British  Empire  stands  the  King-Emperor. 

The  King 

There  have  been  Kings  in  England  (save  for  the  briefest 
intervals)  ever  since  its  settlement  by  the  English  nearly 
fifteen  hundred  years  ago;  perhaps,  indeed,  even  earlier,  for 
it  is  doubtful  whether  the  older  "  Welsh  "  inhabitants  ever 
completely  lost  their  independence  under  Roman  rule,  and 
some  of  their  chiefs,  at  least,  were  probably  called  "  Kings." 
These  ancient  rulers  were  half  patriarchal  chief,  deriving  his 
power  from  birth  and  religion,  and  half  military  leader,  or 
"  heretoch,"  as  the  English  called  him. 

But  for  many  centuries  these  so-called  Kings  ruled  over 
only  small  parts  of  the  country,  or,  rather,  over  small  groups 
of  people.  Then,  by  a  slow  process  of  combination,  the 
numerous  petty  kingdoms  (of  which  the  names  of  some  are 
known  to  us)  became  the  seven  Kingdoms  of  the  Heptarchy, 
and,  finally,  the  one  Kingdom  of  England,  under  the  Wessex 
House  of  Cerdic,  in  the  ninth  century  a.d.  From  that  time, 
there  has  been  (save  for  brief  periods  of  struggle)  but  one 
Kingship  in  England ;  and  the  present  Royal  House  can  trace 
its  descent  from  the  Wessex  House  of  the  ninth  century  a.d. 

Heeeditaey  Descent 

The  old  English  Kingship  was  (as  was  natural  from  its 
origin)  partly  inherited,  partly  elective;  for,  until  the  Nor- 


2  THE    KING-EMPEROR 

man  Conquest,  at  least,  the  Witan,  or  Council  of  Elders, 
claimed  and  exercised  the  right  to  choose  the  fittest  member 
of  the  Royal  House  to  fill  the  throne.  The  Norman  Con- 
quest, however,  in  1066,  though  it  maintained  the  pretences 
both  of  inheritance  and  election,  was  really  a  forcible  revo- 
lution ;  and  the  new  line  was  insecure  in  its  title  till,  in  course 
of  time,  and  by  prudent  inter-marriage  with  the  old  Wessex 
House,  it  came  to  fill  the  place  of  that  House  in  the  minds  of 
the  English.  Meanwhile,  by  its  superior  activity  and 
strength,  it  had  obtained  powers  which  its  predecessors  had 
but  slightly  exercised  —  such,  for  example,  as  the  administra- 
tion of  justice  and  the  regular  management  of  the  resources 
of  the  Kingdom. 

Ireland  and  Wales 

To  this  increased  activity,  the  Norman  House  and  its  suc- 
cessors, the  Angevins  and  Plantagenets,  added  an  increase 
of  territory,  by  the  partial  conquest  of  Ireland  in  the  twelfth 
century  a.d.,  and  the  conquest  and  incorporation  of  Wales 
in  the  thirteenth  and  sixteenth.  Meanwhile,  by  the  loss  of  its 
Continental  possessions  (Normandy,  Anjou,  Maine,  etc.), 
in  the  disastrous  reign  of  John,  it  had  become  more  purely 
English ;  and  it  is  a  remarkable  fact  that,  in  spite  of  the 
immense  influence  of  the  Norman  landowners  and  the  foreign 
clergy,  the  language  (or,  rather,  the  languages)  of  the  coun- 
try remained  truly  English,  though  Norman-French  was  for 
centuries  the  language  of  the  Court,  while  Latin  was  in  gen- 
eral use  for  official  and  religious  purposes. 

Scotland  and  the  Colonies 

The  union  of  the  Crowns  of  England  and  Scotland,  on  the 
accession  of  James  VI  of  Scotland  and  I  of  England  in  1603, 
though  at  first  only  a  family  arrangement,  paved  the  way 
for  a  union  of  the  two  Kingdoms  a  century  later ;  but,  before 
that  time,  a  new  dignity  had  been  added  to  the  ancient  King- 
ship of  England  by  the  rapid  acquisition,  partly  by  conquest, 
partly  by  colonization,  of  vast  territories  "  beyond  the  four 


EXPANSION    OF    THE    KINGDOM  3 

seas,"  destined  one  day  to  give  to  the  British  Crown  a  splen- 
dour and  an  influence  which  no  mere  island  Kingship  could 
confer.  Unhappily,  a  quarrel  between  the  mother-country 
and  her  most  vigorous  colonies  at  the  end  of  the  eighteenth 
century  led  to  a  separation  which  long  left  bitter  memories 
behind  it;  and  the  forced  union  of  Great  Britain  and  Ireland 
at  the  end  of  the  same  century,  though  it  may  have  been  a 
military  necessity,  added  little  to  the  lustre  of  the  British 
Crown. 

India 

On  the  other  hand,  the  rapid  up-building,  on  wiser  lines, 
of  a  new  Colonial  Empire  in  the  nineteenth  century,  and  the 
equally  rapid  conquest  of  India  in  the  eighteenth  and  nine- 
teenth centuries,  raised  the  occupant  of  the  British  throne 
to  the  highest  rank  of  earthly  monarchs,  and  made  the  British 
Empire  the  greatest  political  accomplishment  in  the  world's 
history.  The  definite  incorporation  of  India  in  the  British 
Empire  was  marked  by  the  adoption  of  the  Imperial  title  in 
1876;  though  the  legal  incorporation  dates  from  1858. 

Changes  in  Character  of  Kingship 

Meanwhile,  however,  the  relation  of  the  British  monarch 
to  his  subjects  had  undergone  a  change  no  less  remarkable 
than  the  increase  of  his  territorial  rule.  It  is  well  known, 
of  course,  that,  ever  since  the  close  of  the  thirteenth  century. 
Parliament  had  been  a  permanent  national  institution  with 
gradually  increasing  powers.  On  more  than  one  occasion,  for 
example,  it  had  changed  the  succession  to  the  throne.  It  had 
established  itself  as  the  sole  authority  in  matters  of  taxation, 
and  gained  the  right  to  be  consulted  in  all  important  changes 
of  the  law.  But  it  was  not  until  the  seventeenth  century  that 
it  definitely  challenged  (first  in  the  Civil  War,  then  in  the 
Revolution)  the  ill-defined  "  prerogatives,"  or  special  privi- 
leges, of  the  Crown,  and  established  itself  as  the  supreme 
representative  of  the  national  will.  Then  it  was  that,  by  ac- 
cepting the  throne  on  the  definite  terms  of  a  great  Parlia- 


4)  THE    KING-EMPEROR 

mentary  statute,  known  as  the  "  Bill  of  Rights,"  in  1688, 
William  of  Orange  and  his  consort  not  merely  recognized  the 
fact  that  Parliament  shared  equally  in  the  establishment  of 
the  Kingship,  but,  in  effect,  admitted  that  the  final  disposal 
of  the  throne  lay  with  Parliament.  This  truth  was  admitted 
again,  in  an  equally  unmistakable  way,  when,  on  the  failure 
of  the  Revolution  line  in  1714,  the  Elector  of  Hanover,  the 
great-grandson  of  James  I  and  the  direct  ancestor  of  his 
present  Majesty,  accepted  the  throne  on  the  terms  of  the  Act 
of  Settlement  of  1700,  which  implied  an  acceptance  of  the 
whole  of  the  existing  rules  of  British  law  and  custom.  This 
event  was  rapidly  followed  by  the  introduction  of  that  Cabinet 
System  of  government  which,  as  will  be  presently  explained 
(Chapter  V),  whilst  carefully  cherishing  the  Crown  as  the 
symbol  of  Imperial  unity  and  authority,  protects  it  from 
attack  by  providing  that,  for  every  act  of  government  done 
by  the  King,  some  Minister  shall  be  responsible  to  Parlia- 
ment and  the  people,  and  that  upon  that  Minister  and  his 
colleagues  shall  fall  the  blame  and  the  punishment  for  the  mis- 
takes which  he  or  they  may  have  advised.  Whatever  be  the 
drawbacks  of  this  system,  it  has  unquestionably  raised  to  the 
highest  pitch  those  feelings  of  loyalty  and  popularity  towards 
the  Crown  which  are  so  vital  for  political  safety;  though  it 
is  only  right  to  add,  that  this  happy  result  has  also  been 
largely  caused  by  the  wisdom  and  tact  with  which  the  last 
three  occupants  of  the  throne  have  discharged  the  immense 
and  difficult  duties  of  their  exalted  position.  Let  us  now 
examine  briefly  what  these  duties   are. 

The  King  as  Host-leader 

One  of  the  oldest  (if  not  the  oldest)  of  the  King's  duties 
is  to  lead  his  subjects  in  war.  In  olden  days,  this  duty  was 
performed  in  person;  and,  though  the  change  of  circum- 
stances has  rendered  it  unusual,  if  not  actually  improper,  for 
a  constitutional  monarch  to  appear  in  the  firing  line,  yet  the 
military  side  of  Kingship  is  still  deeply  rooted  in  the  British 
Constitution. 


ALLEGIANCE    AND    NATIONALITY  5 

Allegiance 

The  tie  of  allegiance,  which  is  the  essential  mark  of  nation- 
ality, is  a  personal  bond  between  the  King  and  all  his  sub- 
jects; and  a  breach  of  it  is  treason  against  the  King.  All 
the  acts  which  constitute  this  gravest  of  all  crimes  are,  prac- 
tically, breaches  of  military  loyalty.  And,  though  British 
law  has  departed  from  the  older  rule  that  no  one  could  resign 
his  allegiance,  yet  such  resignation  is  only  allowed  in  certain 
cases  specially  provided  for  in  the  recent  statute  dealing 
with  the  subject,  and,  though  the  Act  does  not  say  so,  prob- 
ably, even  in  such  cases,  only  in  time  of  peace. 

British  Nationality 

Subject  to  these  provisions,  any  person  (with  a  few  special 
exceptions)  born  within  the  British  Dominions  or  on  a  Brit- 
ish ship,  and  any  person  born  outside  the  Empire  whose  father 
was  at  the  time  of  that  birth  a  British  subject,  is  a  natural- 
born  British  subject ;  and  any  foreigner,  or  "  alien,"  to  whom 
a  certificate  of  naturalization  has  been  granted  also  becomes 
a  British  subject,  and  is  under  the  bond  of  allegiance  to  the 
King.  In  passing  it  may  be  said,  that  the  fact  of  being  an 
alien  does  not  of  itself  disqualify  a  person  from  enjoying  the 
protection  and  benefits  of  British  law,  so  far  as  private 
affairs  are  concerned ;  except  that  such  a  person  cannot  own 
any  share  in  a  British  ship,  and,  in  some  parts  of  the  Empire 
(though  not  in  the  United  Kingdom)  he  cannot  own  landed 
property.  But  even  a  friendly  alien  cannot  exercise  any 
political  or  public  rights,  such  as  voting  at  elections  or  sitting 
in  Parliament,  though,  as  a  matter  of  grace,  he  is  usually 
accorded  the  full  protection  of  public  law.  The  wife  or, 
widow  of  a  British  subject,  though  an  alien  born,  is  deemed 
to  be  a  British  subject,  and  vice  versa;  but  in  this  and  a 
few  similar  cases,  express  provision  is  made  to  enable  such 
a  person,  on  the  death  or  change  of  nationality  of  her 
husband,  to  make  a  declaration  of  foreign  or  British  nation- 
ality, as  the  case  may  be. 


6  THE    KING-EMPEROR 

Liability  to  Military  Service 

One  of  the  most  prominent  consequences  of  the  bond  of 
allegiance  is  to  render  the  male  British  subject  liable  to  mili- 
tary service  at  the  King's  summons.  So  far  as  defence  of  the 
realm  is  cojicerned,  this  liability  goes  back  to  remote  antiq- 
uity; and,  though  circumstances  have  tended  in  recent  times 
to  conceal  it,  yet,  in  fact,  the  liability  has  never  been  allowed 
to  become  legally  extinct. 

The  "  Militia  " 

It  was  one  of  the  marked  features  of  the  Norman  policy 
to  keep  alive  the  old  English  fyrd  or  militia ;  and  the  "  Assises 
of  Arms  "  of  the  twelfth  and  thirteenth  centuries  carefully 
regulated  the  liability  to  serve.  In  the  sixteenth  century,  the 
county  militia,  previously  under  the  care  of  the  King's  sher- 
iffs, was  made  the  subject  of  an  Act  of  Parliament  and  organ- 
ized under  a  new  county  official,  the  Lord  Lieutenant 
(p.  249)  appointed  by  the  Crown.  At  the  Restoration  of 
Charles  II  in  1660,  the  King's  sole  right  to  call  out  and 
command  the  militia  (which  had  been  denied  by  the  Long 
Parliament  of  the  Civil  War)  was  fully  confirmed  by  Act  of 
Parliament ;  but  the  same  statute  introduced  an  elaborate 
scheme  which  virtually  placed  its  control  in  the  hands  of  the 
landoAvners  of  its  own  county.  With  the  growth  of  popula- 
tion, it  became  unusual  to  train  the  whole  of  the  male  inhab- 
itants of  the  country ;  and  there  was,  in  normal  times,  rarely 
any  difficulty  in  raising  sufficient  numbers  by  voluntary  en- 
listment. In  the  middle  of  the  eighteenth  century,  however, 
provision  was  made  by  Act  of  Parliament  for  the  regular 
drawing  up  of  lists  of  persons  liable  to  serve  in  the  militia, 
and  the  holding  of  ballots  to  select  by  lot  those  who 
should  actually  be  called  up.  During  the  Napoleonic  wars, 
the  militia,  quite  contrary  to  its  original  purpose,  was  freely 
made  use  of  to  provide  drafts  for  foreign  service,  with  the 
result  that,  as  a  defence  force,  it  almost  disappeared.  Its 
place  was  taken  in  the  middle  of  the  nineteenth  century  by 


LIABILITY    TO    MILITARY    SERVICE  7 

a  body  known  as  "  The  Volunteers  "  (pp.  182,  183)  ;  though, 
as  a  matter  of  fact,  the  whole  army  was  then  a  volun- 
tary service  body.  In  the  year  1907,  the  remains  of  the  old 
militia  and  the  Volunteers  were  united  by  the  new  Territorial 
and  Reserve  Forces  Act,  which  actually  had  in  view  a  volun- 
tary defence  force  though,  as  a  precaution,  the  militia  ballot, 
though  long  disused,  was  not  expressly  abolished.  Like  the 
old  militia,  the  "  Territorials  "  are  organized  under  the 
county  Lord  Lieutenants,  aided,  however,  by  County  Associ- 
ations; and  they  are  only  subject  to  military  law  when  actu- 
ally embodied  or  "  called  out  "  for  service.  This  arrange- 
ment will  be  further  explained  at  a  later  stage  (pp.  182—184). 

Scottish  and  Irish  Militia 

It  appears  beyond  dispute,  that  the  principle  of  liability 
for  defensive  service  was  recognized  in  Scotland  long  before 
the  union  of  that  country  with  England  in  1707;  for  in  the 
year  1483  we  find  the  Scottish  Parliament  assuming  the  lia- 
bility of  all  "  fencible  "  (i.e.,  defensible)  men  to  serve  the 
King  in  their  "  wapinshaws."  Unhappily,  the  peculiar  cir- 
cumstances of  Anglo-Irish  history  rendered  the  liability  for 
defensive  service  unenforceable  in  Ireland  until  a  compara- 
tively late  date;  and  when,  in  the  year  1715,  the  Irish  militia 
was  organized  by  Act  of  Parliament,  it  was  composed  exclu- 
sively of  Protestants.  But  it  is  beyond  question  that  the 
principle  of  liability  for  defensive  service  was  admitted  in  the 
earliest  North  American  colonies  (where  defence  against  the 
Indians  was  a  constant  necessity),  and,  probably,  also  in 
the  other  early  colonial  acquisitions  of  the  British  Crown, 
as  it  certainly  was  in  the  Channel  Islands.  But  the  growth 
of  colonial  independence  on  the  one  hand,  and  the  necessity 
for  keeping  on  foot  a  "  standing  "  or  "  regular  "  army  in  the 
United  Kingdom,  as  well  as  a  permanent  royal  navy,  on  the 
other,  tended,  in  the  seventeenth  and  eighteenth  centuries,  to 
make  the  militia  system  of  secondary  importance.  Of  these 
two  great  institutions,  the  royal  navy  and  the  "  regular  " 
army,  an  account  will  be  more  appropriate  at  a  later  stage. 


8  THE    KING-EMPEROR 

Here  it  is  sufficient  to  emphasize  that,  quite  apart  from  Par- 
liamentary action,  the  fundamental  principles  of  the  British 
Constitution  involve  (a)  liability  to  defensive  service  of  all 
male  subjects  of  the  Crown,  (b)  the  supreme  control  of  that 
service  by  the  Crown.  To  the  Crown  belongs  also,  as  a  natu- 
ral consequence,  the  power  of  declaring  war  and  peace,  and, 
as  another  consequence,  the  control  and  conduct  of  all  inter- 
national intercourse.  For,  if  it  is  too  cynical  a  view  that  all 
international  intercourse  has  grown,  historically,  out  of  war, 
it  is,  unhappily,  beyond  question,  that  all  international  inter- 
course has  been  controlled,  though  in  a  degree  less  now  than 
formerly,  by  military  considerations. 

The  King  as  Head  of  the  "  Executive  " 

Closely  connected  with  his  military  character  is  the  posi- 
tion of  the  King  as  chief  executive  officer  of  the  State.  The 
origin  of  this  side  of  the  Kingship  is,  clearly,  the  necessity 
for  maintaining  internal  order;  for  it  is  obvious  that  a  com- 
munity in  which  internal  order  is  not  maintained  cannot  be 
trusted  to  defend  itself  against  external  attack. 

The  Police 

This  duty  of  the  Crown  is,  in  normal  times,  performed 
through  the  agency  of  the  "  police,"  i.e.,  a  special  class  of 
civilian  soldiers  trained  and  used  for  the  purpose.  But  it  is 
unquestioned  law  throughout  the  British  Empire,  that  the 
King,  and  any  one  to  whom  he  has  entrusted  the  powers  of 
a  magistrate,  may  call  upon  all  his  male  adult  subjects  (sol- 
diers or  civilians)  to  aid  him  in  the  task  of  maintaining  order, 
and  that  any  such  person  who  refuses  to  help  is  liable  to  fine 
and  imprisonment.  The  widely-spread  belief  that,  in  Eng- 
land at  least,  what  is  called  the  "  reading  of  the  Riot  Act," 
of  1714,  is  necessary  before  action  is  taken  to  preserve  order 
by  the  military  or  other  persons  not  members  of  a  regular 
police  force,  is  a  delusion ;  though  there  is  a  good  deal  of 
excuse  for  it.      For  Great  Britain,   at  any   rate,  is  not  a 


THE    KING    AS    FOUNTAIN    OF    JUSTICE       9 

"  police  State "  —  i.e.,  a  State  in  which  the  police  force  is 
brought  under  one  central  control,  and  thus  made  a  regnlar 
organ  of  the  supreme  government.  On  the  contrary,  except 
for  the  Metropolitan  Police,  the  police  forces  of  Great 
Britain  are  still,  as  they  were  in  the  old  days  of  the  village 
constable  and  the  "  watch,"  bodies  under  the  control  of  the 
local  authorities,  the  county  and  borough  councils  and  mag- 
istrates, who  enrol,  equip,  and  maintain  them,  though  they 
are  subject  to  inspection  by  the  central  government,  which 
makes  grants  in  aid  of  their  pay  and  up-keep.  The  chief 
differences  are  that,  while  the  old  village  constable  and  the 
"  watch  "  were  compelled  to  serve,  and  were  not  specially 
trained  for  their  work,  the  modern  policeman  of  Great 
Britain  joins  the  force  quite  voluntarily,  is  paid  a  living 
wage,  and  is  scientifically  trained.  Yet,  local  as  he  is,  every 
policeman,  or  "  constable "  (as  he  is  still  more  properly 
called)  acts  in  the  King's  name,  and  bears  the  staff  sur- 
mounted by  a  copy  of  the  King's  crown. 

The  same  principle  applies  throughout  the  whole  vast 
range  of  that  part  of  the  government  which  we  call  "  the 
Executive,"  because  its  main  concern  is  with  the  enforce- 
ment or  execution  of  the  law.  Whether  the  executive  official 
is  directly  appointed  by  the  King,  as  in  the  higher  ranks  of 
government  and  magisterial  service,  or  by  a  local  authority, 
as  in  the  case  of  a  sheriff's  officer  or  a  superintendent  of 
police,  whether  his  range  of  action  is  wide,  like  that  of  the 
Postmaster-General,  or  limited,  like  that  of  the  Justice  of 
the  Peace  or  the  Sheriff,  each  of  his  acts  is  done  in  the  name 
of  the  Crown.  Even  so  humble  an  act  as  the  delivery  of  a 
postcard  bears  witness  to  this  truth,  in  its  stamp  which  bears 
the  King's  portrait. 

Courts  of  Justice 

Third  in  historical  order  among  the  great  duties  of  the 
Crown  is  the  administration  of  justice.  The  modern  man  is 
so  familiar  with  the  idea  that  all  justice  (in  the  legal  sense) 
is  dispensed  by  "  His  Majesty's  Judges,"  in  their  various 


10  THE    KING-EMPEROR 

ranks,  that  it  comes  upon  him  with  somewhat  of  a  shock  to 
learn  that  this  state  of  things  was  once  a  novelty,  and  is  not, 
even  now,  quite  universally  true.  Thus,  even  now,  the  ecclesi- 
astical or  Church  courts  do  not  act  in  the  King's  name.  But 
until  just  a  century  after  the  Norman  Conquest,  there  were 
no  regular  royal  courts  of  justice  at  all;  though  there  was  an 
idea  that,  in  very  important  cases,  the  trial  ought  to  be  be- 
fore the  King  and  his  chief  advisers.  The  ordinary,  every- 
day disputes  of  the  country  were  disposed  of  by  tribunals 
of  village  elders,  by  feudal  courts,  by  ecclesiastical  courts,  by 
borough  courts  of  burgesses,  or  by  "  courts  merchant  "  of 
traders ;  and  the  gradual  absorption  of  the  duties  of  these 
bodies  by  the  Crown  is  the  outcome  of  a  long  and  bitter 
struggle,  very  fascinating  to  study  but  too  involved  to  be 
described  here.  It  may  be  said  to  have  ended  in  final  victory 
for  the  Crown  at  the  time  of  the  Reformation;  though,  long 
after  that  event,  "  franchises,"  or  exceptional  courts,  con- 
tinued to  exist,  as,  for  example,  in  the  great  Palatine  bishop- 
ric of  Durham  and  the  Scottish  "  heritable  jurisdictions," 
while,  even  to  the  present  day,  as  has  been  said,  the  purely 
ecclesiastical  courts  do  not  administer  justice  in  the  King's 
name.  There  can  be  little  doubt  that  the  chief  reason  for  the 
success  of  the  royal  jurisdiction  was  its  superior  power  to 
enforce  its  decrees ;  and  the  weakness  of  all  other  tribunals  in 
this  respect  has  gradually  put  an  end  to  their  existence. 

Trial  by  Jury 

But  it  is  also  true,  that  the  victory  of  the  King's  Courts 
was  due  to  their  superior  efficiency  and  procedure,  notably  in 
the  famous  introduction  of  the  jury-system.  It  is  another 
widely  spread  belief  that  the  jury  is  of  "popular"  origin, 
coming  down  from  ancient  days.  It  is  nothing  of  the  kind, 
but  a  royal  privilege  which  could  only  be  used  in  the  King's 
courts;  because  no  other  courts  could  compel  jurymen  to 
serve.  For  long  after  its  introduction,  it  was  most  unpopu- 
lar. One  of  the  taunts  of  a  French  poet  of  the  late  Middle 
Ages  against  the  rival  English  was,  that  they  were  "judged 


ADMINISTRATION    OF    JUSTICE  11 

by  inquest,"  i.e.  jury,  instead  of  by  their  "  peers  "  or  fellow 
vassals;  and  it  was  not  until  the  sixteenth  century  that,  as 
a  contrast  to  the  harsh  and  secret  proceedings  of  the  Star 
Chamber  and  the  Court  of  High  Commission,  the  jury  became 
really  popular,  even  in  England.  In  Scotland  it  made  little 
way  until  much  later;  in  Ireland,  it  has  had  a  stormy  history. 
But  in  the  colonies,  which  date  since  its  triumph  in  England, 
and  even,  to  a  certain  extent,  in  British  India,  it  has  long 
been  regarded  as  one  of  the  characteristic  safeguards  of 
liberty. 

Safeguards  against  Arbitrary  Decisions 

It  may  reasonably  be  asked,  however,  whether  this  almost 
complete  triumph  of  the  royal  jurisdiction  was  not  attended 
by  grave  dangers,  owing  to  the  great  increase  of  power 
which  it  brought  to  the  Crown.  Undoubtedly  it  was ;  but 
these  dangers  were  ultimately  averted  by  the  establishment 
of  two  important  principles.  The  first,  established  so  early 
by  the  judges  themselves  that  its  precise  origin  is  uncertain, 
is,  that  the  King  takes  no  personal  part  in  the  proceedings 
of  his  own  law  courts.  This  principle  was  clearly  established 
by  the  end  of  the  thirteenth  century;  and  it  is  one  of  the 
great  services  to  the  cause  of  British  liberty  which  we  owe  to 
the  judges,  as  distinct  from  Parliament.  How  they  did  it, 
we  do  not  quite  know;  perhaps  by  a  cunning  use  of  forms, 
perhaps  by  making  legal  proceedings  so  dull  and  intricate, 
that  the  Kings  had  not  the  patience  to  hear  them.  At  any 
rate  they  did  it,  and  so  effectually,  that  when  James  I,  some 
three  centuries  later,  tried  to  break  the  rule,  he  was  success- 
fully opposed  by  the  great  Sir  Edward  Coke.  But  there 
were  two  weak  spots  in  the  system.  Not  only  did  the  King 
appoint  his  own  judges  (which  was  natural),  but  he  ap- 
pointed them  only  "  during  his  pleasure,"  i.e.  subject  to  dis- 
missal at  any  moment.  Moreover,  the  chief  part  of  their  in- 
come was  received  from  fees  paid  by  "  suitors,"  i.e.  the  people 
whose  cases  were  tried.  Consequently,  the  judges  could  be 
terrorized  by  a  threat  of  dismissal,  or  bribed  by  a  promise 


12  THE    KING-EMPEROR 

of  higher  fees.  This  was  exactly  what  happened  in  the 
seventeenth  century ;  and  it  was,  perhaps,  the  worst  feature 
of  the  Stuart  monarchy.  But  one  of  the  great  triumphs  of 
that  Revolution  which  drove  James  II  from  the  throne  was 
a  complete  reform  in  this  respect;  though  it  was  not  made 
quite  secure  till  the  accession  of  the  House  of  Hanover. 
Then,  in  pursuance  of  the  provisions  of  the  Act  of  Settlement 
of  1700,  the  judges'  "  commissions,"  or  appointments,  were 
made  during  good  behaviour  "  {quam  diu  bene  se  gesserint), 
and  their  salaries  ascertained  and  established,  i.e.  secured  on 
the  national  revenue.  Consequently,  the  judges  cannot  be 
dismissed  by  the  King  except  for  actual  crime  known  to  the 
law  —  nor,  indeed,  in  practice  at  all,  except  on  the  joint  re- 
quest of  both  Houses  of  Parliament  —  while  their  incomes 
are  independent  of  royal  favour.  This  great  principle  has 
been  extended,  not  only  to  Scotland  and  Ireland,  but  through- 
out the  British  Empire,  with  the  priceless  result,  that  British 
judges  are  famed,  not  merely  for  their  learning,  but  for  their 
independence,  their  uprightness,  and  their  impartiality, 
throughout  the  world. 

Legislation 

The  fourth  great  duty  of  the  Crown  is  that  of  legislation, 
or  the  enacting  of  laws.  It  may  seem  strange  to  enumerate 
this  among  the  powers  of  the  Crown;  for  the  fame  of  the 
British  Parliament  and  its  numerous  offspring  as  legislative 
bodies  is  spread  far  and  wide.  But  if  the  reader  will  look  at 
any  Act  of  the  British  Parliament  (even  a  "  Money  "  or  tax- 
granting  Act)  he  will  find  that  it  is  expressly  stated  to  be 
"  enacted  by  the  King's  Most  Excellent  Majesty,"  though, 
doubtless,  "  with  the  advice  and  consent  of  the  Lords  Spirit- 
ual and  Temporal,  and  Commons,  in  this  present  Parliament 
assembled."  Moreover,  there  is  a  great  deal  of  important 
legislation,  known  as  "  Orders  in  Council,"  annually  issued, 
which  never  comes  before  Parliament  at  all,  at  any  rate  until 
after  it  is  enacted,  but  is  made  by  the  King  with  the  advice 
of  his  Privy  Council.  What  is  the  explanation  of  this  appar- 
ent mystery? 


EARLY    CODES    OF    LAW  13 

The  explanation  is  interesting  and  really  important.  In 
early  times,  law  is  not  regarded  as  being  Tnade  at  all,  at  any 
rate  by  earthly  rulers.  Unconsciously,  each  community 
works  out  for  itself  a  course  of  conduct,  or  custom,  which  it 
comes  to  regard  with  the  utmost  reverence,  as  being  of  divine 
origin.  For  long  this  custom  remains  unrecorded,  save  in 
the  memories  or  consciousness  of  the  people.  Gradually,  a 
class  professing  a  special  knowledge  of  this  custom  grows  up ; 
and  this  class  is,  of  course,  the  beginning  of  the  later  pro- 
fession of  lawyers.  Then  again,  some  disturbing  event,  such 
as  a  conquest  or  great  internal  dispute,  renders  it  desirable 
to  put  the  customs  on  record,  i.e.  to  draw  them  up  in  a  more 
or  less  definite  form.  This  is  sometimes  done  by  a  single 
man,  of  repute  for  skill  and  learning.  More  often,  however, 
it  is  done  by  an  assembly  of  the  whole  people,  which  is,  natu- 
rally, presided  over  by  the  King,  if  there  is  one.  The  record 
or  "code"  (which,  originally,  means  nothing  more  than  a 
scroll  or  tablet)  is,  naturally,  connected  in  people's  minds 
with  the  King  under  whose  auspices  it  is  drawn  up ;  and  so  we 
get  such  expressions  as  "  Ethelbirht's  Laws  "  and  "  Alfred's 
Laws."  But  it  does  not  profess  to  be  "made,"  i.e.  created 
or  invented,  by  him,  but  only  ascertained,  settled,  or  drawn 
up  by  him. 

The  "  Common  Law  " 

A  large  part  of  English  law,  even  at  the  present  day,  viz. 
that  part  known  as  the  "  common  law  "  in  the  strict  sense, 
has  never  even  been  recorded  in  any  formal  manner;  for  the 
codes  of  Ethelbirht  and  Alfred  were  mere  local  customs,  and 
the  story  of  a  code  drawn  up  by  Edward  the  Confessor  has 
long  been  shown  to  be  false.  Even  the  masterful  Norman 
Kings,  despite  the  "  Conquest  "  of  1066,  made  no  attempt 
to  root  out  this  ancient  English  customary  law ;  in  fact,  they 
expressly  guaranteed  it,  and  this  is,  perhaps,  the  most  con- 
clusive proof  that  England,  since  it  became  England,  has 
never  been  really  conquered.  All  that  the  Norman  Kings  and 
their  judges  did  was,  to  bring  into  agreement  the  various 


14  THE    KING-EMPEROR 

local  customs,  combine  them  into  one  "  common  law,"  and 
expand  and  enforce  that  common  law  in  their  own  Courts. 

Royal  Commands 

But,  of  course,  long  before  that  time,  the  English  Kings, 
as  host-leaders  and  maintainers  of  order,  had  issued  com- 
Tnands,  often  of  a  wide  character,  such  as  the  famous  "  cur- 
few "  ordinance  of  William  the  Conqueror,  which  required  all 
fires  to  be  extinguished  by  a  certain  hour,  or  the  order  of  the 
same  King  forbidding  the  acknowledgement  of  a  new  Pope 
without  the  King's  consent.  These  commands,  though  often 
spoken  of  as  "  laws,"  are,  obviously,  of  a  different  character 
from  the  voluntary  customs  of  the  people;  they  are  sup- 
posed to  be  only  in  the  nature  of  temporary  and  limited  regu- 
lations, not  altering  the  permanent  relationships  of  citizens 
to  one  another.  Such  regulations  are  the  beginning  of  the 
modern  "  Orders  in  Council,"  before  alluded  to  (p.  12)  ;  and 
it  is  claimed  that  the  Crown  has  still  a  right,  within  certain 
limits,  of  issuing  such  "  prerogative  "  ordinances.  But,  for 
the  most  part.  Orders  in  Council  are  now  issued  under  the 
express  authority  of  Parliament. 

Parliament 

For  the  appearance  of  the  English  Parliament  at  the  end 
of  the  thirteenth  century  gradually  transformed  the  practice 
of  legislation  from  a  rare  and  mysterious  event  into  a 
methodical  and  regular  process.  Though  at  first  intended 
only  as  a  tax-granting  body,  at  any  rate  as  far  as  the  elected 
or  representative  part  of  it  was  concerned,  the  English  Par- 
liament soon  became  very  much  more.  The  King  in  fact, 
early  found,  that  it  is  often  easier  to  call  an  institution  into 
life  than  to  destroy  it  afterwards,  and  that  an  institution 
created  for  one  purpose  may  speedily  learn  how  to  act  for 
quite  other  purposes.  Both  these  discoveries  are  useful 
items  of  state-craft ;  here  they  are  only  mentioned  to  explain 
the    fact   that   the   English   Parliament,   and   especially   the 


PARLIAMENTARY    BILLS  15 

House  of  Commons,  soon  became,  not  merely  a  tax-granting 
body,  but  a  powerful  agency  for  the  removal  of  grievances, 
and,  ultimately,  a  stern  critic  of  the  policy  of  the  Crown. 

Petitions  to  the  King 

In  the  former  capacity,  it  presented  petitions  to  the  King, 
based,  usually,  on  the  complaints  of  its  electors,  and  threat- 
ened to  withhold  "  supplies,"  i.e.  taxes  demanded  by  the 
Crown,  until  these  petitions  were  granted.  At  first,  these 
petitions  were  largely  concerned  with  abuses  of  power  by 
royal  officials ;  and  the  King  would  often  promise  to  pro- 
hibit such  abuses  in  the  future.  But,  as  the  result  was  not 
always  satisfactory,  Parliament  gradually  acquired  the 
habit  (about  the  beginning  of  the  fifteenth  century)  of  send- 
ing up  "  Bills,"  ^  agreed  to  by  both  Houses,  in  the  exact  form 
in  which  the  remedy  was  desired ;  and  these  "  Bills  "  gradu- 
ally, in  their  turn,  became  more  comprehensive  or  general  in 
character,  more,  in  fact,  like  true  "  laws."  Often  the  process 
was  reversed,  and  the  King's  counsellors  submitted  to  Par- 
liament "  Bills  "  which  the  King  desired  to  enact,  and  re- 
quested the  consent  of  the  Houses  to  them.  This  was  the 
origin  of  what  is  now  known  as  "  Government  legislation,"  as 
opposed  to  "  private  members'  legislation,"  which  must  not 
be  confused  with  the  distinction  between  "  public  "  and  "  pri- 
vate "  Bills  (p.  142).  Of  course,  until  a  comparatively  late 
date,  the  King  could,  and  often  did,  refuse  his  assent  to  Par- 
liamentary Bills,  in  the  polite  form  —  le  roy  s^avisera;  but  if 
he  assented  (le  roy  le  veult),  the  Bill  became  a  statute,  or 
Act  of  Parliament.  And  thus  it  came  to  be  held,  that  the 
agreement  both  of  Crown  and  Parliament  was  necessary  to 
legislation,  and  that,  as  we  have  seen,  the  King  still  "  enacts," 
but  only  with  the  "  advice  and  consent  "  of  Parliament. 

'  Like  the  word  "  code  "  (p.  13),  the  word  "  bill "  ori^nally  had  a  very  simple 
taeaning,  {.  e.  that  of  any  written  note  or  demand.  This  meaning  survives  in 
such  expressions  as  "bill  of  the  play,"  "bill  of  costs,"  "bill  of  lading,"  etc. 


16  THE    KING-EMPEROR 

Orders  in  Council 

Meanwhile,  it  was  obvious  that  a  little  straining  of  the  ad- 
mitted power  of  the  Crown  to  make  "  ordinances,"  or  Orders 
in  Council,  could  be  used  with  dangerous  effect  to  undermine 
this  right  of  Parliament  to  share  in  all  legislation ;  for  if  Par- 
liament declined  to  concur  in  a  Bill  proposed  by  the  Crown, 
what  more  easy  than  to  turn  the  Bill  into  an  Order,  which 
required  no  Parliamentary  approval?  This  practice  was  con- 
demned so  early  as  the  year  1322,  when  Parliament  was 
barely  a  quarter  of  a  century  old,  by  a  solemn  statute.  Yet 
it  continued,  with  varying  success,  till  the  beginning  of  the 
seventeenth  century,  when  another  famous  opinion  of  Sir 
Edward  Coke,  the  great  Parliamentary  lawyer,  defined  the 
limits  of  "  proclamations,"  or  prerogative  legislation,  on 
lines  which  have  since  been  generally  observed.  These  are 
that,  while  the  King  may,  by  his  Proclamations  or  Orders, 
enjoin  his  subjects  to  observe  existing  laws,  and,  to  this  end, 
make  regulations  applying  existing  laws,  yet  he  cannot  in 
that  way  change  any  part  of  the  "  common  law,"  or  (espe- 
cially) create  any  new  offences,  without  the  authority  of 
Parliament.  And,  as  the  power  of  making  regulations  to 
carry  out  general  laws  is  more  easily  and  quickly  exercised 
than  the  more  intricate  process  of  passing  an  Act  of  Parlia- 
ment, it  is,  in  fact,  very  frequently  conferred  by  Act  of  Par- 
liament itself,  not  only  on  the  Crown,  but  on  persons  such 
as  the  holders  of  great  offices,  or  a  committee  of  judges,  or 
even  a  municipal  council.  But  in  such  legislation  there  is 
not  the  importance  which  attaches  to  an  Act  of  the  Imperial 
Parliament.  The  validity  of  the  latter  can  never  be  ques- 
tioned in  any  law  court;  while  the  provisions  of  any  of  the 
former  can  always  be  set  aside,  even  in  time  of  war,  as  ultra 
vires,  i.e.  beyond  the  power  of  its  authors  to  make. 

The  Scottish  Parliament 

The  necessity  for  the  agreement  of  Parliament  in  legisla- 
tion appears  to  have  been  clearly  established  in  Scotland  also, 


UNION    OF    THE    PARLIAMENT  17 

long  before  its  union  with  England  in  1707  ;  though  the  Scot- 
tish Parliament  never  attained  the  importance  of  its  English 
compeer.  Consequently,  when  the  two  Parliaments  were 
united  in  1707,  it  went  without  saying  that  agreement  of  the 
united  Parliament  was  and  remains  necessary  for  legislation 
affecting  either  England  or  Scotland.  Owing  to  the  severe 
provisions  of  Poynings'  Laws  (p.  48),  passed  in  the  Irish 
Parliament  of  1495,  the  position  was  by  no  means  so  clear  in 
Ireland;  for  those  statutes  restricted  the  action  of  the  Irish 
Parliament  to  passing  measures  previously  approved  of  by 
the  Crown.  But  these  severe  restrictions  were  first  modified, 
and  then,  in  1782,  finally  abolished;  so  that,  when  the  Irish 
Parliament  was  united  to  that  of  Great  Britain  in  1800,  Ire- 
land naturally  inherited  the  rights  and  responsibilities  of 
Parliamentary  legislation.  Long  before  that  time,  however, 
the  doctrine  had  spread  from  Great  Britain  to  the  older  Brit- 
ish colonies,  where  legislative  assemblies  of  various  kinds  were 
established  by  Crown  charter,  or,  in  some  cases  (to  use  the 
words  of  a  chronicler)  "  broke  out  "  of  their  own  accord. 
And  even  though,  in  the  case  of  colonies  acquired  by  con- 
quest, it  has  not  been  possible  in  all  cases  to  grant  representa- 
tive institutions,  yet,  even  in  some  such  cases,  such  institu- 
tions were  early  granted;  and,  by  a  famous  decision  of  the 
Court  of  King's  Bench  in  1774,  it  was  laid  down  that,  when 
once  such  a  grant  has  been  made,  the  power  of  the  Crown  to 
legislate  for  that  colony,  without  the  consent  of  either  the 
Imperial  or  the  local  Parliament,  is  gone. 

,  Administration 

The  fifth  and  last  great  official  attribute  of  the  Crown  is 
the  power  of  administration.  This  power  is  not  easy  to 
distinguish,  in  theory,  from  the  executive  power,  with  which 
it  is  often  confused.  But,  in  substance,  we  mean  by  "  execu- 
tive "  authority  that  which  is  concerned  with  enforcing  an 
existing  law,  or,  at  least,  policy,  while,  by  "  administrative  " 
authority,  we  mean  rather  the  power  to  frame  a  policy  or 
decide  what  law  shall  be  proposed.     The  chief  point  of  ad- 


18  THE    KING-EMPEROR 

ministration  is,  in  fact,  the  employment  of  discretion,  the 
discreet  and  wise  use  of  the  resources  of  the  nation  for  the 
national  welfare. 

Foreign  Policy 

The  position  of  the  King  with  regard  to  this  power  was 
originally  due  to  his  position  as  representative  of  the  State 
in  dealings  with  other  States ;  and  this,  as  we  have  before 
said  (p.  8),  was  probably  due  to  his  character  as  military 
leader.  Certainly  "  foreign  policy  "  is  one  of  the  oldest  of 
the  prerogatives  of  the  Crown,  and  was  one  of  the  very  last 
to  be  brought  under  Parliamentary  control.  How  it  is  now 
exercised,  we  shall  see  later  (p.  214)  ;  here  we  are  concerned 
with  seeing  how  the  administrative  authority  of  the  Crown 
was  extended  to  internal  matters. 

The  Royal,  Domains 

This  was  probably  (though  the  story  is  obscure)  due 
largely  to  the  position  of  the  King  as  a  great  feudal  land- 
owner. Especially  after  the  Norman  Conquest,  owing  to 
forfeitures  and  confiscations,  as  well  as  to  the  complicated 
system  of  feudal  land  tenure  then  set  up,  the  King,  especially 
if  he  were  at  all  a  prudent  man,  was  so  greatly  the  most 
wealthy  person  in  the  country,  that  his  domains  were,  natu- 
rally, the  models  for  other  domains,  while  his  bailiffs,  stew- 
ards, and  other  officials  were  the  most  skilful  to  be  found. 
Naturally,  also,  to  his  Court  came  all  the  best  artists,  writers, 
philosophers,  and  expert  craftsmen;  and,  as  such  persons 
gradually  made  it  clear  to  the  King  that  his  own  power  and 
splendour  were  increased  by  the  prosperity  of  his  subjects, 
it  is  not  surprising  that  intelligent  rulers  (of  whom  England 
has,  happily,  had  a  full  share)  should  attempt  to  develop 
the  resources  of  their  country  by  all  the  means  in  their 
power.  Despite  their  many  faults,  this  tendency  was 
strongly  shown  by  the  Tudor  monarchs;  and  it  was,  doubt- 
less, one  of  the  great  secrets  of  their  popularity,  though  in 
some   cases,   notably   that   of   "  enclosures,"   i.e.    converting 


GROWTH    OF    STATE    ACTIVITY  19 

"  apen  "  or  common  land  into  separate  farms  (p.  306),  they 
met  with  strong  opposition.  The  efforts  of  the  Stuart  Kings 
in  a  similar  direction  were  not  happy,  mainly  because  they 
were  felt  not  to  be  honest ;  and,  with  the  accession  of  the 
House  of  Hanover,  there  followed  a  long  period  of  what  is 
known  as  laissez-faire,  when  efforts  towards  social  improve- 
ment were  left  mainly  to  private  enterprise.  This  state  of 
things  even  survived  the  introduction  of  machinery  into 
manufactures  (the  "  industrial  revolution  ")  ;  but  the  dis- 
order and  social  injustice  created  by  that  enormous  change 
gradually  produced  an  equally  profound  change  in  public 
opinion,  and  now  the  health,  morals,  education,  and  material 
welfare  of  the  community  are  deemed  to  be  among  the  pri- 
mary objects  of  the  State's  care.  The  extreme  difficulty, 
however,  of  defining  the  proper  limits  of  "  State  interfer- 
ence "  shows  how  comparatively  little  thought  has  yet  been 
devoted  to  this  most  important  aspect  of  the  activities  of 
the  Crown.  In  theory,  there  are  no  limits  to  State  activities ; 
but  this  fact  is  not  so  serious  as  it  sounds,  for  there  are  very 
distinct  limits  to  interference  by  the  Crown  and  its  officials 
in  the  affairs  of  the  citizen.  For,  in  the  first  place,  it  is  diffi- 
cult to  introduce  any  scheme  of  administrative  reform  with- 
out in  some  respects  changing  the  law ;  and  that,  as  we  have 
seen,  can  only  be  done  with  the  consent  of  Parliament.  In 
the  second,  almost  every  administrative  reform  now  (what- 
ever it  may  have  done  in  earlier  times)  involves  the  spending 
of  national  funds ;  and  that  can  only  be  done  with  the  consent 
of  the  House  of  Commons,  a  body  representative  of  popular 
opinion.  Thus,  for  example,  the  great  scheme  of  State  ele- 
mentary education  which  has  been  introduced  into  England 
within  the  last  century  (p.  237),  could  never  have  been  made 
effective  by  the  efforts  of  the  Crown  and  its  advisers  alone; 
for  it  has  cost  vast  sums  of  money,  which  have  annually  to 
be  voted  by  Parliament,  and  it  has  involved  compulsory  at- 
tendance at  school,  which  could  not  be  imposed  except  by  Act 
of  Parliament. 


20  THE    KING-EMPEROR 

The  British  Empire  not  an  Autocracy 

Nevertheless,  this  sketch  of  the  powers  of  the  Crown,  unless 
corrected,  may  leave  upon  the  mind  of  the  reader  the  totally 
false  impression  that  the  British  Empire  is  an  autocracy, 
under  an  hereditary  military  ruler,  on  whose  powers  there 
are  few  legal  restrictions,  and  whose  personal  likes  and  dis- 
likes rule  the  lives  of  his  subjects.  Of  course  the  latter  part 
of  the  impression  would  be  directly  contrary  to  the  truth; 
but  it  was  necessary  to  emphasize  the  former,  to  explain  what 
is  meant  by  the  "  sovereignty  "  of  the  Crown,  which  is  an 
essential  feature  of  the  unity  of  the  British  Empire.  Hav- 
ing, however,  laid  sufficient  emphasis  on  this  aspect  of  the 
Crown,  we  proceed  now  to  the  equally  important  aspect  which 
is  known  as  its  "  constitutional  "  character.  What  exactly 
do  we  mean  by  saying  that  the  British  monarchy  is  a  "  con- 
stitutional "  monarchy.'' 


CHAPTER    II 

THE    CONSTITUTIONAL    MONARCHY 

When  we  try  to  distinguish  a  ruler  who  acts  according  to 
the  wishes  of  his  people,  from  "an  autocrat,  or  ruler  who  acts 
according  to  his  own  view  of  what  is  right,  we  speak  of  him 
as  a  "  constitutional  monarch."  Evidently  the  terms  are  not 
precise ;  for  more  than  one  ruler  whom  we  call  "  autocratic  " 
is  subject  to  a  good  many  restrictions  which  he  cannot  vio- 
late without  breaking  the  law,  while  some  "  constitutional  " 
rulers  exercise  a  good  deal  of  personal  discretion  in  the  dis- 
charge of  their  offices.  Nevertheless,  in  spite  of  doubtful 
cases,  the  distinction  is  well  understood ;  but  it  is  very  often 
not  in  the  least  understood  how  or  in  what  way  a  particular 
ruler  has  become  "  constitutional,"  how,  in  fact,  his  personal 
will  is  guided  and  controlled  by  the  wishes  of  his  subjects. 
Inasmuch  as  the  British  monarchy  is,  actually  and  histori- 
cally, the  most  conspicuous  example  of  a  constitutional  mon- 
archy in  the  world,  it  is  peculiarly  a  good  case  for  study. 
And,  as  so  often  happens,  there  is  no  clearer  way  of  realizing 
the  present  state  of  things  than  by  seeing  how  it  came  about. 

Hereditary  Kingship 

It  may  sound  a  little  startling  to  say  that  one  of  the 
earliest  causes  of  the  constitutional  nature  of  the  British 
monarchy  was  its  hereditary  character.  Yet  such  is  un- 
doubtedly the  case.  So  long  as  any  genuine  element  of  choice 
survived,  the  elected  King  felt  that  he  had  been  chosen  for 
his  personal  qualities ;  and,  naturally,  he  exercised  personal 
rule.  When  he  died,  there  was  what  is  called  an  "  interreg- 
num," or  period  between  Kings ;  and  then,  as  an  old  chron- 
icler  feelingly   remarks,  "  forthwith  every   man   that  could 


22         THE    CONSTITUTIONAL    MONARCHY 

robbed  another,"  for  the  "  King's  Peace,"  or  protection 
against  disorder,  was  suspended.  But,  in  the  twelfth  cen- 
tury, the  English  Kingship  became  definitely  hereditary, 
largely  owing  to  feudal  ideas ;  and  then,  though  it  is  doubtful 
whether  the  military  character  of  the  Kingship  would  have 
permitted  a  woman  to  claim  the  throne  (at  any  rate  there 
was  no  reigning  Queen  in  England  or  Scotland  till  the  six- 
teenth century)  it  could  hardly  be  long  before  the  country 
was  faced  with  an  infant  King.  This  is  exactly  what  hap- 
pened on  the  death  of  King  John  (1215),  whose  eldest  son, 
Henry  III,  was  only  nine  years  old  when  his  father  died. 
It  was  a  "  test  case,"  as  the  lawyers  say.  Should  the  infant, 
who,  obviously,  could  not  personally  exercise  the  powers  of 
Kingship,  be  set  aside  in  favour  of  some  elected  adult,  or 
should  he  nominally  become  King,  and  the  difficulty  be  got 
over  in  another  way  ?  The  latter  was  the  course  chosen  ;  and 
for  years,  all  acts  of  State,  though  nominally  done  in  the 
King's  name,  were  really  decided  by  a  Council  of  Regency, 
consisting  of  the  great  officials  of  the  Kingdom.  The  result 
was  not  entirely  good ;  but  it  was  quite  as  fortunate  as  the 
later  part  of  Henry's  reign,  when  he  himself  governed.  And 
it  is  remarkable  that  it  was  during  that  reign  that  not  only 
were  the  foundations  of  the  future  Parliament  laid,  but  the 
development  of  that  system  whereby,  as  we  have  seen  (p.  11), 
the  actual  administration  of  justice  was  taken  out  of  the 
King's  personal  control,  was  definitely  established.  But  the 
most  striking  proof  of  the  change  which  had  been  wrought 
in  the  character  of  the  Kingship  in  the  thirteenth  century 
was  the  fact  that,  on  the  accession  of  Henry  Ill's  son,  the 
great  Edward  I,  the  commencement  of  the  reign  was  dated, 
not  from  the  new  King's  coronation,  as  tlieretofore,  but  from 
his  father's  death.  As  a  matter  of  fact,  Edward  was  abroad 
at  the  time  of  his  father's  death,  and  did  not  return  to  Eng- 
land till  nearly  four  years  afterwards.  But,  all  that  time, 
*' the  King's  writ  was  running"  (as  contemporary  lawyers 
would  have  said),  that  is,  the  royal  officials  were  pursuing 
malefactors,  deciding  cases,  maintaining  the  King's  Peace, 


HEREDITARY    KINGSHIP  23 

and  generally,  acting  in  the  King's  name,  as  though  under 
the  King's  personal  orders.  Thus  the  dangers  of  an  "  inter- 
regnum "  were  avoided ;  and  thus  the  doctrine  became  true : 
"  The  King  is  dead ;  long  live  the  King." 

The  King  as  an  Institution 

Thus  the  first  three  quarters  of  the  thirteenth  century  had 
already  worked  two  great  changes  which  are  at  the  founda- 
tion of  constitutional  Kingship.  First,  they  had  made  the 
King  not  merely  an  individual  ruler,  but  an  institution, 
that  is,  an  arrangement  or  system  which  goes  on  independ- 
ently of  the  actual  occupant  of  the  throne,  and  is  capable  of 
lasting  for  ever.  One  great  result  of  this  change  was,  that 
each  new  King,  as  he  ascended  the  throne,  found  himself  face 
to  face  with  a  body  of  law  and  tradition  which  set  bounds  to 
his  personal  will,  though  he  had  never  personally  agreed  to 
accept  it.  It  is  well  known  that  this  feature  of  Kingship, 
which  seems  so  natural  to  us,  was  not  acknowledged  in  West- 
ern Europe  till  towards  the  end  of  that  vague  period  which 
we  call  the  Middle  Ages.  Charles  the  Great  and  his  descend- 
ants, for  example,  never  admitted  that  they  were  bound  by 
their  predecessors'  "  charters,"  or  promises,  unless  they  had 
themselves  confirmed  them.  And  we  can  see  traces  of  this 
idea  lingering  on,  and  even  after  the  thirteenth  century,  in 
the  frequency  with  which  the  "  Great  Charter  "  of  1215  was 
re-issued  by  King  John's  successors.  But,  by  the  end  of  the 
fourteenth  century,  the  rule  that  the  acts  of  each  King  bound 
his  successors  was  firmly  established ;  and  it  survived  even  the 
so-called  "  despotism  "  of  the  Tudor  monarchs.  So  that 
statesmen  came  to  think  and  speak  of  the  King  rather  as  an 
institution  than  an  individual;  though,  to  the  mass  of  the 
people,  the  personal  qualities,  real  or  imaginary,  of  the 
monarch  long  remained  of  great  interest.  This  change  of 
order  in  the  more  influential  classes  was  expressed  by  the 
use  of  the  term  "  Crown  "  instead  of  "  King."  The  crown 
is,  of  course,  an  inanimate  object,  which  is  kept  in  the 
Tower  of  London;  but,  by  the  simple  process  of  using  a 


24         THE    CONSTITUTIONAL    MONARCHY 

capital  letter  in  writing  it,  we  make  it  stand  for  the  King- 
ship as  an  institution. 

Effect  of  Courts  of  Justice 

The  other  great  change  in  the  character  of  the  Kingship 
made  in  the  first  three  quarters  of  the  thirteenth  century 
was  the  establishment  of  the  doctrine  that,  in  the  adminis- 
tration of  justice,  the  King  ought  to  take  no  personal  share, 
though  it  is  regularly  carried  on  in  his  name.  We  have  sug- 
gested, already  (pp.  11—13),  how  this  change  was  brought 
about.  Here  we  have  only  to  notice  how  powerfully  it  con- 
tributed, perhaps  even  more  than  the  better-known  achieve- 
ments of  Parliament,  to  make  the  Kingship  constitutional. 
For,  in  allowing  his  judges  to  decide  cases,  not  according 
to  his  own  personal  views,  but  according  to  the  "  laws  and 
customs  of  the  realm,"  the  King  was  really  allowing  them 
to  act  in  his  name  according  to  the  wishes  of  his  subjects; 
because,  as  we  have  seen  before  (p.  13),  the  English  "  com- 
mon law,"  which  the  judges  administered,  was  the  expres- 
sion of  the  unconscious  will  of  the  nation.  And  though  there 
arose,  in  the  following  century,  a  new  and  powerful  tribunal, 
the  Court  of  Chancery,  which  professed  to  administer  the 
King's  "grace,"  not  the.  "common  law,"  yet  it  is  remark- 
able how,  in  a  comparatively  short  time,  that  "  grace  "  began 
to  follow  popular  custom  and  practice  as  its  guide,  until,  by 
the  end  of  the  sixteenth  century,  it  had  become  hardly  dis- 
tinguishable in  character,  except  to  experts,  from  the  older 
"  common  law." 

Growth  of  Parliament 

But,  of  course,  the  crowning  achievement  of  the  great  thir- 
teenth century  was  the  achievement  of  its  last  years,  the 
creation  and  establishment  of  Parliament,  as  a  direct  expres- 
sion of  the  national  will,  through  the  process  known  as  "  rep- 
resentation "  by  elected  representatives.  The  story  of  this 
new  and  famous  institution  is  very  well  known,  at  least  in 
outline.     It  is,  therefore,  sufficient  to  say  here  that,  by  add- 


APPEARANCE    OF    PARLIAMENT  25 

ing  to  the  already  existing  Great  Council  of  Peers,  i.e.  the 
great  feudal  tenants,  lay  and  ecclesiastical,  of  the  Crown, 
a  new  body,  consisting  of  "Knights  "  chosen  by  (or  from) 
each  shire,  and  of  citizens  and  burgesses  from  each  privileged 
city  or  borough,  and  a  third  body  consisting  of  certain  minor 
ecclesiastics,  and  "  proctors  "  or  agents  from  the  cathedral 
and  diocesan  clergy.  King  Edward  I,  following  the  hints 
previously  given  by  Simon  de  Montfort  and  other  reformers 
of  his  father's  reign,  brought  together  in  the  year  1295  the 
great  Parliament  which,  despite  the  practical  disappear- 
ance from  its  ranks  of  the  minor  clergy  and  their  proctors 
soon  after,  has  ever  since  remained  the  historical  model  and 
ideal  of  national  representation,  and  which  now,  though  still 
representative  only  of  England,  Scotland,  and  Ireland, 
claims  to  be,  in  conjunction  with  the  Crown,  the  supreme 
legislative  authority,  not  only  in  the  United  Kingdom,  but 
in  the  British  Empire. 

Not  Originally  a  Legislative  Body 

What  is,  however,  not  so  well  known  is,  that  this  new  Parlia- 
ment, or  at  least  the  representative  part  of  it,  was  not  origi- 
nally intended,  by  the  King  or  his  advisers,  to  act  as  a  legis- 
lative or  ruling  body  at  all,  but  to  fulfil  the  much  humbler 
task  of  granting  money  for  the  King's  needs,  which  were 
then  heavy.  The  very  words  of  the  original  "  writs  "  of  sum- 
mons to  this  Parliament  of  1295  survive ;  and  from  them  we 
see  that  the  lay  representatives,  at  any  rate  (the  case  of 
the  clerical  proctors  is  a  little  doubtful)  were  simply  sum- 
moned "  to  do  what  then  of  common  counsel  shall  be  or- 
dained in  the  premises."  This  was  in  marked  contrast  to  the 
writs  of  the  peers  or  magnates,  who  were  summoned  "  to  dis- 
cuss, ordain,  and  do  " ;  and  King  Edward  was  careful  to  omit 
from  the  writs  for  the  humble  representatives  of  shires  and 
towns  that  specious  admission  that  "  what  touches  all  shall 
be  approved  of  all ",  with  which  he  prefaced  the  summons  to 
the  peers.  In  fact  King  Edward,  wise  and  far-seeing  as  he 
was,  would  probably  have  been  profoundly  astonished,  and 


26         THE    CONSTITUTIONAL    MONARCHY 

not  altogether  pleased,  could  he  have  foreseen  that  he  was 
creating  an  institution  which  would  rapidly  rise  to  dispute 
the  power  and  claims  of  his  own  successors,  and  ultimately 
to  bend  and  break  their  wills. 

But,  as  has  been  before  observed,  it  is  one  thing  to  create 
an  institution,  and  quite  another  to  set  bounds  to  it;  and 
the  English  Parliament  soon  proved  the  truth  of  this  maxim. 
For  the  King,  in  the  excess  of  his  caution,  and  to  prevent 
any  excuses  about  want  of  authority  from  their  constituents, 
had,  in  the  writs  of  summons,  bidden  the  sheriffs  return  rep- 
resentatives "  having  full  and  sufficient  power  from  their 
communities  " ;  and  thus  the  English  Parliament,  from  the 
very  first,  was  distinguished  from  some  at  least  of  the  Conti- 
nental Diets  or  States-General,  by  the  fact  that  no  question 
could  be  raised  as  to  the  limits  of  its  powers.  The  King's 
advisers  were  thinking,  no  doubt,  when  they  inserted  these 
words,  of  the  power  of  consenting  to  the  King's  demands. 
But  the  representatives  of  the  Commons  applied  them  freely 
also  to  the  power  to  refuse  demands,  and  the  power  to  claim 
redress.  Thus,  as  has  been  already  explained  (p.  15),  by 
making  stiff  bargains  for  "  redress  of  grievances  "  before 
it  would  grant  supplies,  the  House  of  Commons  soon  ac- 
quired the  right  to  share  with  the  Crown  and  the  Peers  in 
the  important  process  of  legislation,  and  thus  to  impose  an- 
other national  fetter  on  the  exercise  of  the  personal  will  of 
the  monarch. 

Control  of  the  Executive 

Still,  we  should  hardly,  at  the  present  day,  regard  a  mon- 
archy as  "  constitutional,"  in  the  complete  sense,  merely  be- 
cause the  King  could  not  decide  cases  according  to  his  per- 
sonal views,  or  raise  taxes  or  legislate  without  the  consent 
of  a  representative  Parliament.  This  is  the  position,  for 
example,  at  any  rate  in  theory,  of  the  German  Emperor  and 
most  of  the  State  monarchs  of  Germany ;  and  we  do  not 
regard  them  as  constitutional  rulers.  We  do  not  regard  a 
monarch  as  truly  constitutional  unless  he  acts  in  his  execu- 


A    SOVEREIGN    PARLIAMENT  27 

tlve  and  administrative  capacity  also  according  to  the  wishes 
of  his  subjects,  i.e.  unless  what  we  call  the  "  daily  conduct  of 
the  Government  "  is  in  harmony  with  the  feelings  and  judg- 
ment of  the  country.  We  know  that,  in  fact,  at  the  present 
day,  and  for  some  century  at  least,  this  has  been  the  state  of 
affairs  in  the  United  Kingdom  and  the  self-governing  Domin- 
ions of  the  British  Empire;  though  by  no  means  so  com- 
pletely in  the  "  Crown  colonies  "  or  India.  How  was  this 
state  of  affairs  brought  about? 

The  Crown  and  its  Officials 

It  is  usual  to  look  for  the  beginnings  of  this  principle  in 
the  various  attempts  of  Parliament  to  influence  the  Crown 
in  the  choice  of  its  officials  or  "  Ministers,"  and  to  procure 
the  rejection  or  dismissal  of  Ministers  who,  in  the  judgment 
of  Parliament,  were  corrupt,  inefficient,  or  mischievous.  In 
fact,  the  story  goes  further  back ;  for  it  would  not  have  been 
much  use  for  Parliament  to  influence  the  conduct  of  Minis- 
ters, unless  Ministers  could  influence  the  conduct  of  the 
Crown.  But  this  latter  influence  was  very  early  established ; 
for,  with  the  great  increase  in  the  activities  of  the  Crown 
which  resulted  from  the  Norman  Conquest,  we  learn  that  the 
Kings  soon  found  it  necessary  to  collect  around  them,  as  a 
permanent  institution,  a  body  of  advisers,  known  first  as  the 
Curia  Regis  or  "  King's  Court,"  and,  later,  as  the  King's 
"  Ordinary  "  or  "  Privy  "  Council. 

The  Privy  Council 

This  body,  as  distinguished  from  the  larger  Council  of 
Peers  or  Magnates,  which  only  met  at  intervals  for  the  dis- 
cussion of  important  business,  probably  had  quarters  in  the 
King's  palace,  and  met  frequently  for  the  transaction  of 
ordinary  every-day  business. 


28         THE    CONSTITUTIONAL    MONARCHY 

The  Exchequer 

One  of  its  earliest  forms  was  that  of  the  Exchequer,  or 
Finance  Office,  which  managed  the  receipt  and  expenditure 
of  the  royal  revenue.  We  have  a  vivid  account  of  this  body's 
procedure  in  the  twelfth  century,  by  a  contemporary  writer 
who  evidently  wrote  from  first-hand  knowledge;  and  one  of 
the  things  that  strikes  us  most  about  it  is  the  mass  of  minute 
regulations  for  keeping  every  item  of  business  in  its  proper 
form.  Thus,  for  example,  this  "  Dialogue  of  the  Exchequer  " 
informs  us  that  every  item  of  receipt  and  pa3mtient  has  to  be 
entered  in  three  different  records,  or  "  rolls,"  kept  by  differ- 
ent hands,  and  to  pass  through  various  stages  for  approval, 
before  it  can  be  regarded  as  lawfully  made.  And  again, 
though,  doubtless,  the  King  was  entitled  to  order  any  pay- 
ment he  liked  out  of  his  own  treasury,  he  had  to  do  it  by  a 
proper  "  writ,"  which  had  to  be  "  tested  "  or  countersigned 
by  the  proper  official,  and  sealed  with  a  seal  kept  by  another 
official,  and  then  delivered  to  another  official,  and  so  on. 
It  is  not  difficult  to  see  how  these  precise  forms  (in  which 
the  Norman  lawyers  excelled)  would,  in  fact,  restrict  the 
exercise  of  the  King's  personal  authority;  for  each  step  in 
the  process  would  give  opportunity  for  objections  and  diffi- 
culties, while  the  recipient  or  payer  of  the  item  would  be 
equally  interested  in  seeing  that  the  proper  forms  were  ob- 
served, because,  if  there  was  the  smallest  error,  he  would  not 
get  his  money  or  his  acquittance. 

Official  control  of  this  kind  would,  naturally,  develop 
greatly  during  the  periods  when  the  King  was  an  infant  or 
otherwise  incapable  of  judging  for  himself;  as  was  the  case 
with  Henry  III  at  the  beginning  of  his  reign  (p.  22),  and 
with  Henry  VI  at  frequent  intervals  during  his  long  reign. 

The  Seals  Act 

Accordingly,  we  are  not  surprised  to  find  that,  even  during 
the  reign  of  Henry  VIII,  which  followed  soon  after,  an  Act 
of  Parliament  was  passed  providing  that  every  exercise  of 


IMPEACHMENTS  29 

the  royal  authority  which  required  the  use  of  the  Great  Seal 
should  be  preceded  by  no  less  than  three  distinct  stages, 
being  authorized  first  by  "  sign  manual,"  then  by  the  royal 
signet,  tliirdly  by  the  privy  seal,  each  in  charge  of  a  separate 
official,  who  should  be  entitled  to  charge  a  fee  for  his  share 
in  the  process.  A  cynical  observer  might  say  that  the  last 
provision  afforded  the  most  powerful  guarantee  that  the 
statute  would  be  obeyed ;  and  the  suggestion,  though  cynical, 
is  not  without  weight.  But  the  real  importance  of  the  Seals 
Act  of  1535  is  the  evidence  it  affords  of  the  extent  to  which, 
before  Parliament  had  obtained  control  over  the  Crown  offi- 
cials, these  officials  had  virtually  obtained  a  good  deal  of 
control  over  the  Crown.  It  is  true  that  the  Seals  Act  ex- 
pressly reserved  power  to  the  King  personally  to  dispense 
with  the  regular  forms ;  and  there  was  another  exception 
to  which  reference  will  hereafter  be  made.  But,  for  all 
that,  the  statute,  which  was  not  repealed  till  a  comparatively 
short  time  ago,  deserves  more  attention  than  it  has  hitherto 
received. 

Control  of  the  Crown  by  its  own  officials,  however,  though 
it  might  have  produced  what  we  call  a  "  bureaucracy,"  i.e. 
a  government  of  officials,  never  would  have  produced  consti- 
tutional or  popular  government,  unless  the  officials  them- 
selves had  been  checked  and  controlled  by  a  popularly  elected 
body.  To  that  side  of  our  constitutional  history  we  must 
next  turn. 

Apart  from  some  early  and  premature  attempts,  the  first 
two  efforts  of  Parliament  to  control  or  check  the  policy  of 
the  Executive  date  from  the  latter  part  of  the  fourteenth 
century,  when  the  brilliant  reign  of  Edward  III  was  drawing 
to  a  gloomy  close. 

Impeachments 

One  of  these  was  the  famous  step  taken  in  1376,  when  the 
"  Good "  Parliament  undertook  the  punishment  of  Lords 
Latimer  and  Neville,  two  of  the  Ministers  of  the  King,  as 
well  as  of  Richard  Lyons  and  other  "  farmers  (or  collectors) 


30         THE    CONSTITUTIONAL    MONARCHY 

of  customs."  Probably  because  these  Ministers  were  mem- 
bers of  the  Upper  House,  the  Commons  undertook  the  prose- 
cution or  "  impeachment,"  and  the  Lords  the  trial  and 
judgment;  and  this  division  of  labour  became  the  rule,  which 
was  strictly  followed  until  the  abandonment  of  the  process 
of  impeachment  a  century  ago.  The  step  taken  in  1376  was 
followed  in  1386  on  the  impeachment  of  the  Earl  of  Suffolk ; 
and,  though  it  was  temporarily  dropped  in  the  fifteenth  and 
sixteenth  centuries  in  favour  of  arbitrary  Acts  of  Attainder 
(which  are  merely  statutes  ordering  execution  without  trial), 
it  was  revived  with  great  effect  in  the  Parliamentary  struggle 
of  the  seventeenth  century,  in  the  well-known  cases  of  Buck- 
ingham, Strafford,  and  Laud,  and  was  resumed  after  the 
Restoration,  in  the  cases  of  Clarendon,  Danby,  and  others, 
down  to  the  case  of  Warren  Hastings,  the  last  famous 
(though  not  absolutely  the  last)  instance  of  impeachment. 
The  special  point  about  an  impeachment  for  our  purpose  is, 
that  it  is  not  necessarily  based  on  any  definite  crime  (indeed 
a  commoner  could  not  be  impeached  for  an  ordinary  felony), 
but  always  on  misconduct  in  affairs  of  State  as  an  official. 
Thus  it  afforded  a  real,  though  rather  irregular,  check  on 
arbitrary  and  corrupt  conduct  by  a  Minister  of  the  Crown; 
especially  after  it  had  been  decided,  as  it  was  in  Danby's 
case  (1678),  that  even  obedience  to  the  King's  personal 
order  was  no  defence  to  an  impeachment. 

"  Appropriation  "  and  "  Ordinary  "  Revenue 

Almost  simultaneously  with  the  appearance  of  impeach- 
ment, viz.  in  1377,  we  note  the  beginning  of  an  even  more  im- 
portant effort  of  Parliament  to  control  the  action  of  the 
Executive,  by  "  appropriating  "  to  particular  objects  taxes 
granted  by  it  at  the  request  of  the  King.  This  was  a  new 
feature  in  the  situation ;  and  it  could  hardly  have  appeared 
so  long  as  the  King  continued  to  "  live  of  his  own,"  i.e.  to 
defray  the  expenses  of  government  out  of  his  hereditary  or 
customary  revenues,  such  as  the  rents  of  Crown  Lands,  the 
profits  of  administering  justice,  the  ancient  port  dues,  and 


REVENUE  — THE    CABINET    SYSTEM         31 

the  like.  Parliament,  of  course,  had  no  chance  of  touching 
this  revenue,  which  came  to  the  King's  treasury  without  its 
aid. 

"  EXTEAORDINARY  "    REVENUE 

But,  happily,  the  English  monarchs  of  the  later  Middle 
Ages  never  succeeded  (except  in  rare  periods)  in  living  on 
this  "  ordinary  "  revenue,  but  were  constantly  obliged  to  ask 
Parliament  to  supplement  it  by  grants  of  "  extraordinary  " 
revenue,  i.e.  taxation,  mainly  direct.  Then  came  Parlia- 
ment's chance ;  and  tliough  the  move  of  1377  was  not  immedi- 
ately repeated,  it  was  not  forgotten,  and,  after  the  Resto- 
ration of  1660,  Parliament  resorted  to  it  fully  and  freely, 
particularly  when  Charles  II  scandalously  wasted  the  large 
sums  voted  for  the  carrying  on  of  the  Dutch  war.  Since 
that  time,  the  practice  has  developed  so  greatly  that  it  has 
enabled  Parliament,  and  more  particularly  the  House  of 
Commons,  which,  shortly  after  1377,  succeeded  in  establish- 
ing its  pre-eminence  in  all  matters  of  finance,  to  bring  under 
review  and  criticism  almost  every  conceivable  act  of  the 
Crown's  Ministers,  by  refusing  to  vote  a  particular  item  in 
the  financial  scheme  of  the  year  (or  "  Budget  ")  until  that 
act  is  explained  and  justified. 

The  "  Cabinet  System  " 

Parliament  was,  therefore,  proceeding  on  well-prepared 
ground,  when  it  made  its  final  and  successful  bid  for  complete 
control  of  the  Executive  in  the  early  eighteenth  century. 
The  circumstances  were  favourable.  The  new  Hanoverian 
line  owed  its  throne  entirely  to  the  choice  of  Parliament, 
which,  in  the  Act  of  Settlement  of  1700,  ignored  the  claims 
of  the  elder  (Stuart)  branch  of  the  Royal  House,  and  con- 
ferred the  Crown  upon  the  descendants  of  the  Electress 
Sophia  of  Hanover,  the  granddaughter  of  James  I,  "  being 
Protestants."  The  first  two  monarchs  who  held  the  throne 
under  this  Act  were  born  abroad,  and  knew  and  cared  little 
about  British  affairs.     They  were,  necessarily,  bound  to  rely 


32         THE    CONSTITUTIONAL    MONARCHY 

almost  entirely  on  their  Ministers  for  information  and  ad- 
vice; and,  so  long  as  certain  privileges  and  income  were 
pretty  much  what  they  pleased.  It  saved  trouble,  and  came 
to  much  the  same  thing  in  the  end.  But  these  Ministers 
were  themselves  not  in  a  very  easy  position.  They  knew 
that  the  exiled  Stuart  family,  and  its  numerous  supporters, 
denied  altogether  the  validity  of  the  Revolution  which  had 
seated  William  of  Orange  on  the  throne,  and,  therefore,  the 
validity  of  the  Act  of  Settlement.  These  "  Jacobites,"  as 
they  were  called,  upheld  the  doctrine  of  Divine  Right,  by 
which  the  crown  was  claimed  as  the  direct  gift  of  Heaven, 
and,  therefore,  incapable  of  being  taken  away  from  its 
"  legitimate  "  wearer,  and  were  prepared  to  treat  as  traitors 
all  persons,  and  especially  Ministers  of  State,  who  supported 
the  new  line.  Naturally  unwilling  to  lose  their  heads,  the 
Ministers  of  George  I  and  George  II  not  only  banded  them- 
selves, in  spite  of  many  jealousies,  firmly  together,  but  made 
it  their  especial  business  (we  need  not  enquire  too  closely  by 
what  means)  to  maintain  a  majority  in  Parliament,  and  espe- 
cially in  the  House  of  Commons,  of  that  "  Whig "  party 
which  supported  the  Hanoverian  line  against  the  Tories  and 
Jacobites.  To  do  this,  they  were,  of  course,  obliged  to  take 
the  House  into  their  confidence,  and  obtain  its  approval  for 
their  policy;  and  Sir  Robert  Walpole's  act,  in  1742,  when  he 
resigned  office  the  moment  a  vote  in  the  House  of  Commons 
went  against  him,  is  justly  regarded  as  marking  the  definite 
establishment  of  the  famous  Cabinet  System,  which  rests  on 
two  great  principles ;  first,  that  the  King,  in  all  political  mat- 
ters, must  follow  the  advice  of  the  Cabinet,  and,  second,  that 
the  Cabinet  itself  can  continue  to  hold  office  only  so  long  as  it 
can  secure  a  majority  in  the  House  of  Commons. 

"  Appeal  to  the  People  " 

Thus  was  established  one  great  essential  of  constitutional 
monarchy,  viz.  the  control  by  the  House  of  Commons  of  the 
policy  of  the  Crown ;  and,  inasmuch  as  the  House  of  Commons 
is  a  representative  body,  its  control  may  be  said,  in  normal 


HABEAS    CORPUS  33 

times,  to  be  the  control  of  the  people,  or,  at  least,  the  electors. 
But  it  may  happen,  and  not  infrequently  does,  that  the  House 
of  Commons  may  be  "  out  of  touch  "  with  the  electors,  i.e. 
by  acting  in  a  manner  of  which  they  do  not  approve.  This 
happened  in  1784,  in  the  first  Ministry  of  the  younger  Pitt. 
After  an  obstinate  struggle,  the  House  of  Commons  had 
defeated  the  determined  attempt  of  George  III  to  upset  the 
Cabinet  System;  but  its  patriotism  stopped  there,  and  it 
factiously  opposed  the  honest  and  vigorous  government  of 
Pitt.  Thereupon  Pitt  turned  the  tables  upon  it  in  a  masterly 
way,  by  persuading  the  King  to  exercise  his  unquestioned 
right  to  dissolve  Parliament,  and  order  a  General  Election. 
At  that  election,  Pitt's  followers  were  in  a  great  majority; 
and  the  precedent  thus  set  establishes  the  rule,  that  the  ulti- 
mate decision,  in  the  event  of  a  quarrel  between  the  Cabinet 
and  the  House  of  Commons,  lies  with  the  electors.  This  is 
the  famous  "  appeal  to  the  people,"  which  is  the  supreme 
guarantee  of  popular  government,  for  it  protects  the  citizen, 
not  only  against  the  King,  but  against  the  King's  Ministers 
and  even  Parliament  itself. 

Habeas  Corpus 

Not  long,  however,  before  the  crowning  achievement  of 
1784,  the  liberty  of  the  citizen  (which  is,  of  course,  also  of 
the  essence  of  constitutional  government)  had  been  further 
secured  by  a  series  of  events  extending  over  just  a  century, 
beginning  with  the  struggle  for  the  Habeas  Corpus,  and  end- 
ing with  what  are  known  as  the  "  General  Warrant  "  cases. 

The  famous  writ  of  Habeas  Corpus  has  a  curious  history, 
which  cannot  be  fully  told  here.  Originally,  it  was  a  docu- 
ment issued  in  an  ordinary  prosecution  or  action  at  law, 
bidding  the  sheriff  "  have  the  body  "  of  the  defendant  in 
prison  ready  for  the  trial  of  the  case.  At  the  beginning  of 
the  seventeenth  century,  it  began  to  be  used  as  a  means  of 
testing  the  lawfulness  of  imprisonments  by  the  numerous 
special  or  "  prerogative "  courts  set  up  by  the  Tudors. 
When  a  man  was  thus  imprisoned,  he  would  get  one  of  his 


34         THE    CONSTITUTIONAL    MONARCHY 

friends  to  apply  to  one  of  the  regular  "  common  law  "  courts 
to  issue  the  writ  of  Habeas  Corpus  to  the  gaoler  who  held 
the  prisoner,  bidding  him  produce  the  latter's  body  before 
the  common  law  court,  which  was  supposed  to  want  him  for 
its  own  purposes,  and  explain  why  he  (the  gaoler)  held  the 
prisoner  in  custody.  The  writ  was  freely  used  in  the  great 
struggle  between  Charles  I  and  his  Parliaments,  especially 
in  the  famous  "  Five  Knights  "  (1627)  and  "  Six  Members  " 
(1629)  cases.  One  of  the  first  acts  of  the  Long  Parliament, 
when  it  assembled  in  the  autumn  of  1640,  was  to  pass  a  stat- 
ute guaranteeing  the  right  to  the  writ  of  Habeas  Corpus  in 
all  cases,  to  all  persons  imprisoned,  on  whatever  ground. 
Of  course  if  the  gaoler  who  obeys  the  writ  shows  good  cause 
for  the  imprisonment,  the  rule  or  order  for  the  issue  of  the 
writ  is  not  made  "  absolute  " ;  and  the  prisoner  is  remanded 
to  prison.  But  the  cause  shown  must  be  strictly  "  lawful," 
i.e.  such  as  would  justify  imprisonment;  and,  even  then,  the 
court  which  hears  the  "  return  "  or  explanation,  may  (except 
in  rare  cases)  let  the  prisoner  out  on  bail.  The  more  famous 
Habeas  Corpus  Act  of  1679  is  really  only  an  amending  meas- 
ure, stopping  up  loopholes  and  adding  new  safeguards ;  the 
real  victory  was  won  in  1640.  The  remedy  avails,  of  course, 
not  only  against  imprisonment  by  Government  officials,  but, 
even  more,  against  unlawful  detention  by  private  persons. 

The  "  Rule  of  Law  " 

The  remedy  of  Habeas  Corpus  protects  the  personal  lib- 
erty of  the  citizen ;  the  "  General  Warrants  "  cases  established 
his  liberty  in  property  and  reputation.  The  actual  decisions 
turned  upon  the  propriety  of  warrants  issued  on  suspicion 
by  a  Secretary  of  State,  to  search  the  house  and  goods,  npt 
merely  of  a  particular  alleged  offender,  but  of  any  one  whom 
the  official  executing  the  warrant  might  suspect  to  be  guilty 
of  a  particular  offence.  In  the  year  1763,  a  notorious  dema- 
gogue named  Wilkes,  whose  papers  had  been  searched  under 
such  a  warrant  issued  by  a  Secretary  of  State,  sued  that 
official's  secretary,  who  had  taken  part  in   the  search,  for 


i 


THE    "RULE    OF    LAW"  35 

trespass,  and  won  his  case.  He  was  followed,  two  years 
later,  by  other  complainants,  who  sued  the  actual  persons 
executing  the  warrants,  with  similar  success.  And  when  the 
defendants  in  these  cases  set  up  the  plea  that  they  were  act- 
ing bond  fide  in  the  interests  of  the  State,  it  was  drily  re- 
marked by  the  Chief  Justice  that  "  if  the  legislature  be  of 
that  opinion,  they  will  make  it  lawful."  It  was  not  enough 
for  the  defendants  to  plead  that  their  acts  were  done  in  the 
interests  of  the  State;  they  had  to  show,  if  they  wished  to 
succeed,  that  such  acts  were  lawful.  Thus  was  established 
the  famous  Rule  of  Law,  which  lays  down  the  principle,  that 
no  act,  even  of  the  highest  official,  however  bond  fide  and  ap- 
parently reasonable,  which  infringes  the  liberty  or  rights  of 
a  citizen,  is  justifiable,  unless  it  is  authorized  by  law,  and 
that,  for  any  such  unlawful  act,  by  whatever  authority  com- 
manded, the  official  is  personally  liable,  like  the  humblest 
member  of  the  community,  in  an  action  in  the  ordinary  courts. 
Of  course  the  reader  will  be  careful  to  observe  that  the  act 
complained  of  need  not  be  justified  by  statute  or  Act  of 
Parliament;  because  a  good  deal  of  English  law  is  not  con- 
tained in  statutes.  But  it  is  important  to  observe,  that  this 
Rule  of  Law,  though  it  originated  in  England,  has  passed 
automatically,  not  only  to  Scotland  and  Ireland,  but  to  all 
the  British  possessions  which  have  adopted  English  law,  and 
that,  in  some  others,  the  remedy  of  Habeas  Corpus  has  been 
guaranteed  by  statute. 

Colonial  Independence 

One  other  cause,  too  often  forgotten,  for  the  growth  of 
constitutional  liberty  in  the  British  Empire,  is,  unquestion- 
ably, the  expansion  of  the  United  Kingdom  into  that  more 
widely  scattered  group  of  communities  which  we  call  the 
British  Empire.  As  was,  perhaps,  natural,  in  the  earlier 
stages  of  this  expansion,  the  Crown  and  Parliament  of  Great 
Britain  tried  to  keep  the  control  of  distant  colonies  in  their 
own  hands.  But,  in  days  when  the  means  of  communication 
were  slow  and  costly,  this  attempt,  as  might  have  been  ex- 


36         THE    CONSTITUTIONAL    MONARCHY 

pected,  was  ineffectual;  and,  as  a  matter  of  fact,  the  earlier 
colonies  exercised  a  good  deal  of  practical  self-government, 
under  more  or  less  popular  constitutions.  As  is  well  known, 
however,  a  foolish  and  disastrous  attempt  to  tighten  the  con- 
trol of  the  central  government  led  to  the  separation  of  the 
thirteen  colonies  of  the  American  coast  towards  the  end  of 
the  eighteenth  century ;  and,  though  we  may  rejoice  that  that 
step  gave  rise  to  the  mighty  Republic  of  the  United  States, 
we  cannot  but  regret  that  it  had  to  be  taken  in  circumstances 
which  long  left  bitter  feelings  in  the  minds  of  both  nations. 
Warned,  however,  by  this  event,  the  British  statesmen  of  the 
nineteenth  century  encouraged  the  growth  of  self-govern- 
ment freely  in  the  colonies  founded  by  English  settlers ;  and 
Canada,  Australia,  New  Zealand,  and  South  Africa  rapidly 
ran  through  the  various  stages  of  freedom,  till  they  arrived 
at  complete  local  independence,  tempered  only  by  the  Im- 
perial tie  of  allegiance  to  the  Crown.  Even  in  the  colonies 
of  alien  blood,  much  local  independence  was  freely  granted; 
while  the  great  dependency  of  British  India  was  largely  gov- 
erned by  private  and  unofficial  authority,  though  in  ever- 
lessening  degree,  till  its  definite  incorporation  into  the  British 
Empire  in  1858.  All  these  tendencies  and  results,  which  will 
be  the  subject  of  special  description  in  the  next  chapters,  in- 
evitably encouraged  the  spirit  of  liberty,  and  limited  the  pos- 
sibilities of  autocratic  government  from  the  political  centre 
of  the  Empire.  Thus,  in  complete  and  happy  contrast  to 
other  Empires  —  for  example,  the  Roman  Empire  —  the 
growth  of  distant  dependencies,  instead  of  converting  the 
British  Empire  into  an  absolute  despotism,  led  to  an  enlarge- 
ment of  the  bounds  of  self-government  and  freedom. 

The  Personal  Powers  of  the  King 

Finally,  before  leaving  the  Crown  as  the  supreme  author- 
ity in  the  British  Empire,  and  the  symbol  of  its  unity,  we  must 
say  a  few  words  on  a  subject  which  is  much  apt  to  be  misun- 
derstood. It  might  be  hastily  supposed,  from  an  enumera- 
tion of  the  many  constitutional  checks  and  safeguards  which 


PERSONAL    POWERS    OF    THE    KING         37 

secure  the  constitutional  character  of  the  monarchy,  that 
the  King  himself  is  a  mere  figure-head,  whose  duties  could  be 
performed  almost  equally  well  by  a  statue  capable  of  making 
certain  mechanical  signs.  That  would  be  a  ludicrous  mistake. 
It  is,  happily,  quite  true,  that  the  spirit  and  institutions 
of  the  British  Empire  would  render  it  difficult,  if,  unfortu- 
nately, a  weak  or  bad  King  should  succeed  to  the  throne,  for 
such  a  monarch  to  do  much  harm,  at  any  rate  in  his  official 
capacity.  That  is  an  advantage  which  is  essential  to  the  suc- 
cess of  a  hereditary  monarchy ;  for  it  is  a  matter  of  common 
observation,  that  merit  cannot  be  relied  upon  to  pass  from 
father  to  son.  But  it  would  be  a  superficial  error  to  assume 
that,  because  a  bad  monarch  can  do  little  harm,  therefore  a 
good  one  can  do  little  good.  Happily,  the  history  of  the  last 
three  British  reigns  is  a  complete  refutation  of  such  an  error; 
but  it  may  be  worth  while  to  explain  briefly  how  the  personal 
qualities  of  the  King-Emperor  may  be  of  value  to  the  Empire. 

The  King  as  a  Person 

In  the  first  place,  the  King  supplies  the  vital  element  of 
personal  interest  to  the  proceedings  of  government.  It  is 
far  easier  for  the  average  man  to  realize  a  person  than  an 
institution.  Even  in  the  United  Kingdom,  only  the  educated 
few  have  any  real  appreciation  of  such  abstract  things  as 
Parliament,  the  Cabinet,  or  even  "  the  Crown."  But  the  vast 
mass  of  the  people  are  deeply  interested  in  the  King  as  a 
person,  as  is  proved  by  the  crowds  which  collect  whenever 
there  is  a  chance  of  seeing  him ;  and  it  is  possible  that  the 
majority  of  the  people,  even  of  the  United  Kingdom,  to  say 
nothing  of  the  millions  of  India,  believe  that  the  government 
of  the  Empire  is  carried  on  by  the  King  personally.  He 
therefore  supplies  the  personal  and  picturesque  element 
which  catches  the  popular  imagination  far  more  readily  than 
constitutional  arrangements,  which  cannot  be  heard  or 
seen ;  and  a  King  or  Queen  who  knows  how  to  play  this 
part  skilfully,  by  a  display  of  tact,  graciousness,  and 
benevolence,    is    rendering    priceless    services    to    the    cause 


38         THE    CONSTITUTIONAL    MONARCHY 

of  contentment  and  good  government.  It  is  true  that 
this  element  has  a  humorous  as  well  as  a  slightly  danger- 
ous side.  For  example,  the  unfortunate  phrase  "  King's 
taxes  "  causes  a  good  many  simple-minded  people  to  believe 
that  the  King  personally  receives  all  the  money  which  is 
raised  in  his  name,  which  is,  of  course,  quite  untrue.  But, 
on  the  whole,  the  King  or  Queen  attract  the  admiration  and 
interest  of  the  great  mass  of  their  subjects  in  a  way  which 
no  other  political  authority  does ;  and  they  thus  render  gov- 
ernment intelligible  to  the  many.  It  is  more  than  doubtful 
whether  the  Empire  would  hold  together  without  them. 

His  Unofficial  Influence 

Very  closely  allied  to  this  personal  character  of  the  King, 
is  the  great  unofficial  and  social  influence  which  he  wields, 
and  not  he  alone,  but  the  Queen,  and,  in  a  lesser  degree,  the 
other  members  of  the  Royal  Family.  Their  influence  in  mat- 
ters of  religion,  morality,  benevolence,  fashion,  and  even  in 
art  and  literature,  is  immense.  Every,  or  almost  every, 
scheme  set  on  foot  with  these  objects  is  eager  to  secure  their 
patronage ;  to  be  able  to  prefix  the  title  "  Royal  "  to  the 
name  of  the  association  is  regarded  as  an  almost  certain 
guarantee  of  success.  And  this  patronage  is,  very  rightly, 
only  accorded  with  great  discretion,  and  after  careful  en- 
quiry, in  which  the  personal  judgment  of  the  monarch,  if 
wisely  exercised,  is  of  the  greatest  value.  How  much  good 
was  done  in  this  way  by  the  late  Queen  Victoria,  is  a  matter 
of  common  knowledge;  it  was  one  of  the  striking  triumphs 
of  her  long  reign.  And,  be  it  remembered,  in  such  matters 
the  monarch  is  in  no  way  bound  to  follow,  or  even  to  seek, 
the  advice  of  his  Ministers ;  for  such  matters  lie  outside  the 
domain  of  politics.  It  could,  perhaps,  be  wished  that  this 
fact  were  true  also  of  what  are  technically  called  "  honours," 
the  award  of  which  on  the  advice  of  Ministers  has  led  to  a 
cynical  traffic  in  titles  and  decorations.  But,  unfortunately, 
that  is  a  subject  which  has  long  been  immersed  in  politics. 


PERSONAL    POWERS    OF    THE    KING         39 

His  Political  Rights 

In  the  third  place,  moreover,  it  must  not  be  supposed  that, 
even  in  the  arena  of  politics,  the  King-Emperor's  part  is 
purely  that  of  a  mouthpiece.  Doubtless,  as  we  have  seen  in 
the  last  two  chapters,  one  official  function  of  the  Crown  after 
another  has  been  brought  within  constitutional  control ;  but, 
in  spite  of  all  the  achievements  of  popular  struggles,  the 
King-Emperor  may  be  said  still  to  have  three  political  rights, 
the  exercise  of  which  ultimately  rests  on  his  own  discretion, 
viz. :  the  right  to  be  informed,  the  right  to  warn,  and  the 
right,  in  rare  cases,  to  refuse  advice,  even  when  tendered  by 
his  constitutional  Ministers.  A  few  words  as  to  each  of 
these  rights  shall  conclude  this  chapter. 

The  Right  to  be  informed 

The  King  has  the  right  to  be  informed.  Inasmuch  as  all 
the  most  important  acts  of  State  are  (as  we  have  seen)  done 
in  the  King's  name,  and  require  his  express  authority,  he  is 
entitled  to  know  exactly  to  what  he  is  giving  his  approval. 
The  vast  correspondence  which  passed  between  George  IH 
and  his  Ministers  has  been  published;  and  it  records  the 
minuteness  with  which  the  King  was  kept  in  touch  with  daily 
affairs  of  State.  It  may  be  said,  of  course,  that  this  is  a  bad 
example ;  because  George  HI,  at  any  rate  in  the  first  part 
of  his  long  reign,  strove  to  break  down  constitutional  gov- 
ernment, and  very  nearly  succeeded.  But  the  same  practice 
prevails  to  the  present  day ;  and  it  was  only  a  year  ago  that 
the  nation  learnt,  by  express  first-hand  evidence  in  Parlia- 
ment itself,  that  the  Prime  Minister's  daily  letter  to  the  King 
includes  an  account,  not  merely  of  the  public  proceedings 
of  Parliament,  but  of  the  secret  discussions  of  the  Cabinet. 
And  this  information  must  be  given  in  good  time  to  enable 
him  to  make  himself  master  of  it  before  he  is  called  upon  to 
act  upon  it.  This  was  the  point  emphasized  by  Queen  Vic- 
toria in  the  famous  letter  to  Lord  Palmerston,  in  which  she 
temporarily  extinguished  that  buoyant  Minister,  in  1851. 


40         THE    CONSTITUTIONAL    MONARCHY 

The  Right  to  Warn 

But  it  follows,  almost  inevitably,  that  a  King  who  is  fully 
informed  of  affairs  becomes,  in  course  of  time,  if  he  is  an 
able  man,  an  unrivalled  storehouse  of  political  experience. 
Ministers  come  and  go ;  they  are  swayed,  it  is  to  be  feared, 
by  the  interests  of  their  party  as  well  as  by  those  of  the 
State;  they  may  have  had  to  make,  in  order  to  obtain  sup- 
port, bargains  which  tie  their  hands ;  they  have  ambitions  for 
the  future,  which  they  are  loath  to  jeopardize.  Not  so  the 
King.  He  is  permanent ;  he  is  above  all  parties ;  he  does  not 
bargain  for  places  and  honours ;  he  has  nothing  in  the  way 
of  ambition  to  satisfy,  except  the  noble  ambition  of  securing 
his  country's  welfare.  So  he  can  say  to  his  Ministers,  with  all 
the  weight  of  his  experience  and  position :  "  Yes,  I  will,  if  you 
insist,  do  as  you  wish;  but,  I  warn  you,  you  are  doing  a  rash 
thing.  Do  you  remember  so  and  so.''  "  Only,  the  King  must 
not  give  his  warning  in  public ;  he  must  not  seem  to  overrule 
his  Ministers.  But  a  Minister  will,  unless  he  is  an  exception- 
ally rash  person,  think  many  times  before  disregarding  a 
warning  from  the  King. 

The  Right  to  Refuse 

Finally,  the  King,  in  certain  rare  cases,  may  take  the  ex- 
treme step  of  refusing  to  act  on  his  Ministers'  advice,  even 
in  political  matters.  Naturally,  he  will  not  do  so  without 
weighing  the  cost,  remembering  that  the  shielding  maxim, 
"  The  King  can  do  no  wrong,"  has  its  counterpart  in  the 
maxim  that  the  King,  except  in  the  rarest  cases,  must  act  on 
his  Ministers'  advice,  for  which  they  are  responsible.  This 
is  a  priceless  principle  of  the  British  Constitution;  because, 
while  a  Minister  can  be  displaced  quietly  and  without  fuss, 
any  personal  action  against  a  King  is  apt  speedily  to  lead 
to  violence  and  bloodshed.  Still,  it  is  the  duty  of  the  King, 
on  rare  occasions,  to  take  this  risk ;  but  they  are  really  rare. 
Apart  from  the  undisputed  right  of  the  King  to  refuse  to 
appoint  to  office  a  man  known  to  him  to  be  unworthy,  even 


PERSONAL    POWERS    OF    THE    KING         41 

though  recommended  by  a  Minister,  there  would  appear  to 
be  now  only  two  well-known  cases  in  which  the  King  is  justi- 
fied in  opposing  his  personal  will  to  the  advice  of  his  Minis- 
ters in  matters  of  State,  unless,  of  course,  that  advice  should 
entail  an  actual  breach  of  the  law.  The  first  is,  when  a  re- 
quest is  made  to  him  to  create  peers  with  the  avowed  object 
of  securing  a  passage  through  the  House  of  Lords  of  a  Bill 
ardently  desired  by  the  House  of  Commons.  This  matter 
was  much  discussed  on  the  occasion  of  the  struggle  over  the 
Parliament  Act  of  1911,  to  be  hereafter  explained  (p.  150)  ; 
and  it  was  generally  thought  that,  in  a  case  of  this  kind,  the 
King  was  not  bound  to  act  on  the  advice  of  his  Ministers, 
unless  it  was  clear  that  the  country  supported  them.  The 
other  crisis  occurs  when  the  Cabinet  cannot  secure  the  sup- 
port of  the  House  of  Commons,  and,  following  the  prece- 
dent of  1784  (p.  33),  asks  the  King  to  dissolve  Parliament 
and  order  a  General  Election.  Here  it  is  said  that,  if  the 
Ministry  was  formed  (as  in  that  case)  after  the  existing 
House  of  Commons  was  elected,  the  King  must  accede  to  the 
Ministers'  request;  but  if,  on  the  other  hand,  a  House  of 
Commons  was  elected  since  the  formation  of  the  Ministry, 
then,  presumably,  the  latest  expression  of  the  popular  will 
is  adverse  to  the  Ministry,  which  cannot,  therefore,  insist  on 
a  dissolution  of  Parliament.  If  these  views  are  correct,  it  will 
be  seen  that,  even  in  the  case  of  a  difference  between  the  King 
and  his  Ministers,  the  wishes  of  the  country  are  the  final 
court  of  appeal. 


CHAPTER    ni 

THE    TERRITORIES    OF    THE    EMPIRE: 
THE  UNITED   KINGDOM   AND   THE   SELF- 
GOVERNING    DOMINIONS 

One  of  the  chief  reasons,  though  not  the  only  reason,  why 
the  dominions  of  the  British  Crown  have  received  the  some- 
what misleading  name  of  "  Empire  "  is,  that  they  comprise  a 
large  number  of  separate  communities  differing  in  language, 
institutions,  religion,  and  other  qualities,  and  united  only  by 
their  common  allegiance  to  the  British  Crown,  and  their 
common  sympathy  with  one  another.  In  former  times,  such 
collections  of  different  communities  were  rarely  created  ex- 
cept by  the  process  of  forcible  conquest ;  though  occasionally 
the  personal  interests  of  a  ruler,  acquired  by  marriage  or 
descent,  exercised  some  influence  in  that  direction.  It  was, 
therefore,  natural  that,  when  British  statesmen  began  to 
realize  that  they  were  the  servants  of  a  monarch  whose  rule 
was  gradually  extending  far  beyond  the  bounds  of  the  British 
Islands,  they  and  others  should  begin  to  speak  of  that  rule 
as  "  Imperial,"  though,  in  fact,  it  was,  as  we  shall  see,  only 
in  part  based  on  conquest.  But  the  practice  is  unfortunate, 
though  now,  probably,  too  firmly  fixed  to  be  changed ;  for  it 
conceals  the  important  fact,  that  the  so-called  "  British  Em- 
pire "  is  by  no  means  a  collection  of  subordinate  peoples  gov- 
erned by  a  ruling  race  with  the  sword  and  spear,  but  a  vast 
body  of  communities,  nearly  all  of  which  enjoy  a  good  deal 
of  control  over  their  own  affairs,  and  some  of  which  are 
practically  independent  commonwealths. 


THE    UNITED    KINGDOM  43 

The  Story  of  the  Empire 

The  story,  long  and  brilliant,  of  the  events  by  which  this 
vast  Empire  was  created,  cannot  be  told  within  the  limits  of 
this  book.  Happily,  this  is  not  necessary;  for  it  has  been 
admirably  told  by  other  writers,  and  readers  of  these  pages 
cannot  be  too  strongly  advised  to  make  themselves  acquainted 
at  once  with  the  outlines  of  the  story  in  some  trustworthy 
version.^  Here  all  that  can  be  done  is,  to  group  the  different 
communities  which  form  the  British  Empire  according  to 
their  constitutional  character  and  their  relations  to  the  Im- 
perial or  central  government,  and  explain  briefly  the  posi- 
tion of  each  in  these  respects.  And  for  these  purposes  it 
will  be  found  that  such  communities  fall  into  four  great 
groups,  viz.  (1)  the  United  Kingdom,  (2)  the  "  self-govern- 
ing "  Dominions  in  the  strict  sense,  (3)  the  "  Crown  "  col- 
onies, and  (4)  the  great  dependency  of  British  India.  Be- 
yond these,  there  is  a  fringe  of  "  feudatory  "  or  "  protected  " 
states,  which  do  not  actually  form  part  of  the  dominions  of 
the  British  Crown,  but  are  so  closely  connected  with  it,  that 
a  few  words  as  to  their  position  will  be  necessary. 

The  United  Kingdom 

(1)  The  United  Kingdom  itself,  which,  as  we  shall  see, 
occupies  a  special  position  in  the  British  Constitution, 
though  now  for  many  purposes  a  single  community,  is,  as  its 
name  implies,  a  union  or  combination  of  formerly  independ- 
ent countries.  For  at  least  five  centuries,  the  western  rule 
of  the  English  Kings,  which  had  been  gradually  extended 
from  the  English  Channel  to  the  river  Tweed,  ceased  at  a  line 
vaguely  drawn  from  the  Dee  to  the  Severn. 

Wales 

West  of  this  line,  or  "  border,"  the  hills  and  valleys  of 
Wales  were  still  governed  by  patriarchal  chieftains,  who  oc- 

^  No  better  example  can  be  chosen  than  the  little  collection  of  six  lectures 
by  Sir  Charles  Lucas,  K.C.B.,  K.C.M.G.,  published  by  Messrs.  Macmillan 
under  the  title  of  "The  British  Empire,"  in  1915. 


44  TERRITORIES    OF    THE    EMPIRE 

caslonally  united  in  allegiance  to  a  single  ruler  or  Prince,  but, 
more  often,  acknowledged  no  superior,  and  carried  on  tribal 
wars  with  their  neighbours,  or,  towards  the  end  of  this  period, 
with  the  Norman  "  Lords  Marchers  "  of  the  borders,  who 
held  great  feudal  possessions  from  the  English  Crown  on 
condition  of  guarding  England  against  Welsh  invasion. 
During  this  long  period,  England  was  gradually  being  built 
up  into  a  single  country,  with  a  definite  and  strong  govern- 
ment, which  has  since  become  the  model  and  centre  of  the 
Empire.  Before  her  bounds  were  further  enlarged,  England 
had  acquired  her  great  permanent  institutions,  such  as  her 
Treasury,  her  Law  Courts,  her  Privy  Council,  and  even, 
though  in  incomplete  form,  her  Parliament. 

Edward  I  and  Wales 

One  of  the  many  achievements  of  the  great  English  King 
Edward  I  was  the  incorporation  into  English  territory  of  a 
large  part  of  Wales.  This  result  was  achieved  by  hard, 
though  not  unprovoked  fighting;  and  it  was,  probably,  as 
good  for  the  Welsh  as  for  the  English.  Out  of  the  northern 
part  of  Wales,  six  counties  were  created  on  the  English 
model;  and  the  English  legal  system  was  largely  introduced 
into  them,  though  with  a  considerable  recognition  of  Welsh 
customs.  Strong  border  castles  were  built  to  maintain 
order ;  and  around  these  grew  up  the  Welsh  towns  of  a  later 
day.  The  Welsh  bishoprics  were  brought  under  the  influence 
of  the  English  ecclesiastical  province  of  Canterbury ;  and 
their  bishops  were  summoned  to  the  English  House  of  Lords. 
But  it  is  noteworthy,  that  the  step  of  granting  representation 
in  the  then  new  Parliament  to  Welsh  shires  and  boroughs, 
was  not  taken  till  more  than  two  centuries  later. 

Henry  VHI  and  Wales 

This  occurred  In  the  reign  of  Henry  VIII,  in  the  midst  of 
the  numerous  changes  caused  by  the  religious  Reformation. 
The  Tudor  monarchs  were  themselves  partly  of  Welsh  descent, 


INCORPORATION    OF    WALES  45 

and  probably  understood  the  Welsh  better  than  did  their 
predecessors.  Accordingly,  after  some  further  fighting  in 
the  reign  of  his  father,  Henry  VIII  determined  to  complete 
the  work  of  Edward  I,  by  making  England  and  Wales  one 
country.  He  created  six  more  Welsh  countries  out  of  "  wild 
Wales,"  and,  unfortunately,  an  additional  English  county 
(Monmouth)  out  of  that  borderland  which  had  always  been 
more  than  half  Welsh  in  language  and  sentiment.  To  the 
Welsh  counties  and  their  capital  towns  he  gave  the  right  of 
sending  each  one  member  (not  two  as  in  England)  to  the 
House  of  Commons ;  except  that,  instead  of  the  shire  town 
of  Merioneth,  the  port  of  Haverford-west  sent  a  member. 
Though  a  special  judicial  system  prevailed  in  Wales  until  the 
early  part  of  the  nineteenth  century,  Wales  thus  became 
definitely  united,  for  government  purposes,  to  England ;  its 
peculiar  customs  were  abolished,  or,  at  least,  ignored;  and, 
in  legal  language,  "  England  "  now  includes  Wales,  unless 
special  exception  is  made.  In  fact,  save  for  the  admirable 
and  self-governing  system  of  higher  and  secondary  educa- 
tion in  Wales,  England  and  Wales  are,  for  our  present  pur- 
pose, practically  a  single  country.  The  only  other  point  to 
which  it  seems  necessary  to  call  attention  is  that,  by  the  pro- 
visions of  the  Welsh  Church  Act  of  1914,  which  have  not  yet 
been  put  into  force,  the  Welsh  branch  of  the  Established 
Church  of  England  is  to  be  "  disestablished,"  i.e.  severed 
from  all  connection  with  the  State.  This  branch  will,  there- 
fore, cease,  on  the  coming  into  operation  of  the  Act,  to  be 
a  part  of  the  British  Constitution. 

Scotland 

Much  later  and  less  complete  was  the  union  of  England 
and  Scotland. 

Personal,  Union 

As  before  pointed  out,  this  union  did  not  take  place  until 
1603,  when  James  VI  of  Scotland,  the  great-great-grandson 
of  Henry  VII  of  England,  through  the  marriage  of  Henry's 


46  TERRITORIES    OF    THE    EMPIRE 

daughter  Margaret  to  James  IV  of  Scotland,  succeeded  to 
the  English  throne  on  the  death  of  Queen  Elizabeth.  Even 
then,  the  union  was  only  "  personal,"  i.e.  the  same  man  was 
King  both  of  England  and  Scotland,  but  the  laws  of  the  two 
countries,  public  and  private,  their  institutions,  and  their 
forms  of  religion,  were  different,  though  there  was,  naturally, 
a  good  deal  of  similarity  between  them.  This  state  of  affairs 
was  the  source  of  much  dispute  and  jealousy,  especially  on 
the  question  of  law :  how  far  the  union  of  the  Crowns  entitled 
the  inhabitants  of  one  of  the  two  countries  to  enjoy  the 
rights,  or  made  them  liable  to  the  duties,  of  natives  in  the 
other.  It  was  even,  in  theory,  possible  that  England  and 
Scotland  should  be  at  war  with  different  countries,  without 
being  bound  to  help  each  other;  and,  in  fact,  at  one  period 
during  the  Civil  War  between  Charles  I  and  his  Parliament, 
the  two  countries  were  at  war  with  one  another.  But  the 
most  dangerous  question  arose  at  the  Revolution  of  1688, 
when  it  was  very  doubtful  whether  the  Scotch  were  prepared 
to  accept  the  English  choice  of  William  and  Mary  to  fill  the 
joint  thrones;  and  a  quarrel  between  the  two  nations  was 
only  with  the  greatest  difficulty  avoided. 

Real  Union 

It  then  became  clear,  to  all  wise  statesmen  in  both  coun- 
tries, that  something  must  be  done  to  put  the  relationship 
of  England  and  Scotland  on  a  more  satisfactory  footing; 
and,  at  last,  in  the  year  1707,  by  a  Treaty  of  Union  made 
between  representatives  of  the  two  countries,  it  M^as  agreed 
that  the  two  Crowns  should  be  for  ever  united  and  follow  a 
single  line  of  descent,  that  there  should  be  a  single  Parliament 
for  Great  Britain,  which  should  include  representative  peers 
of  Scotland,  as  well  as  elected  representatives  of  Scottish 
shires  and  boroughs,  that  there  should  be  complete  freedom 
of  trade  and  commerce  between  the  two  countries,  and  that  all 
political  and  public  offices  should  be  equally  open  to  the  in- 
habitants of  either  country.  On  the  other  hand,  the  judicial 
and  private  legal  systems  of  each  country  were  to  remain 


UNION    WITH    SCOTLAND  47 

distinct;  the  excellent  educational  system  of  Scotland  (and 
especially  her  universities)  was  guaranteed  permanence;  and, 
above  all,  the  separate  and  independent  existence  of  the 
Presbyterian  Church  of  Scotland,  which  is  entirely  different 
in  government  and  form  of  worship  from  the  Episcopalian 
Church  of  England,  was  secured  by  every  solemnity  that 
could  be  devised,  though  naturally,  as  the  Established  Church 
of  Scotland  does  not  recognize  bishops,  there  are  no  Scottish 
bishops  in  the  House  of  Lords.  The  best  proof  of  the  wis- 
dom of  the  Act  of  Union  of  1707  is,  that  it  has  remained  sub- 
stantially unaltered  for  more  than  two  hundred  years,  and 
has  converted  what  was  formerly  a  state  of  jealousy  and  sus- 
picion between  the  two  countries  into  hearty  friendship  and 
co-operation. 

Scottish  Office 

And,  notwithstanding  the  Union,  the  separate  identity  of 
Scotland  is  preserved  in  administrative  as  well  as  in  religious 
and  legal  matters.  Though  the  English  and  Scottish  Treas- 
uries were  united  in  1707,  and  the  administrative  work  of 
Scotland  passed  to  the  British  Secretary  of  State,  yet  in 
fact  that  official  was  largely  advised  by  the  Lord  Advocate, 
the  senior  Law  Officer  (p.  274)  for  Scotland,  who  had  a  place 
of  business  for  that  purpose  in  Whitehall.  This  somewhat 
inconvenient  arrangement  continued  until  1885,  when  a  Sec- 
retary for  Scotland  was  appointed,  as  a  member  of  the  Min- 
istry of  the  day,  to  take  charge  of  Scottish  affairs.  He  is 
not,  technically,  a  Secretary  of  State  (p.  273),  but  a  general 
Minister  for  Scotland,  who  answers  all  questions  relating  to 
Scotland  in  Parliament,  administers  the  excellent  Scottish 
educational  system,  in  his  capacity  of  Vice-President  of  the 
Committee  of  the  Privy  Council  on  Education  in  Scotland, 
and  presides  over  the  meetings  of  the  Scottish  Government 
Board  created  in  1894,  which  performs  duties  similar  to  those 
exercised  by  the  Local  Government  Board  in  England 
(p.  230).  There  is  also  a  Board  of  Agriculture  for  Scotland, 
created  in  1912,  and  consisting  of  a  Chairman  and  two  Com- 


48  TERRITORIES    OF    THE    EMPIRE 

missioners,  which  are  not  political  offices,  and  a  separate 
Fishery  Board,  established  in  1882.  The  National  Insurance 
Act  of  1911  (p.  208)  created  a  separate  body  of  Health 
Commissioners  for  Scotland,  to  administer  the  benefits  of 
the  Act,  and  a  separate  Insurance  Fund ;  and  Scotland  has 
its  own  Prison  Commission,  National  Gallery  and  Portrait 
Gallery,  Geological  Survey,  and  other  national  institutions. 

Ireland 

The  story  of  the  relations  between  England  and  Ireland 
is  painful  and  still  unsettled.  Though  Ireland  was  nominally 
annexed  to  the  English  Crown  in  the  twelfth  century,  English 
rule  was  long  confined  to  the  few  counties  round  Dublin, 
known  as  "  The  Pale  " ;  and,  though  a  Parliament,  in  imita- 
tion of  the  English,  was  established  in  Ireland  in  the  four- 
teenth century,  the  statutes  which  it  passed  had  no  effect 
beyond  this  district,  and  not  much  within  it.  Such  little 
government  as  there  was,  was  carried  out  by  the  Lord 
Deputy,  who  represented  the  English  King,  and  his  Council, 
and  the  great  feudal  landowners,  such  as  the  Burghs,  the 
Butlers,  the  Laceys,  and  the  Fitzgeralds,  who  exercised  sway 
over  vast  estates.  The  English  judicial  and  financial  systems 
were  likewise  nominally  in  force  in  Ireland,  within  the  Pale, 
with  greater  or  less  reality,  according  to  the  circumstances 
of  the  period. 

PoYNiNGs'  Laws 

It  is  not  a  matter  for  surprise  that,  in  these  conditions, 
the  institutions  of  Ireland,  even  within  the  Pale,  showed  a 
marked  and  increasing  difference  from  the  English;  and  one 
of  the  first  cares  of  the  strong  Tudor  monarchy  was  to  devise 
a  scheme  for  the  more  complete  subordination  of  the  Irish 
to  the  English  government.  Accordingly,  in  the  year  1494, 
the  Lord  Deputy  Poynings  was  instructed  to  force  through 
the  Irish  Parliament  a  scries  of  statutes  ever  since  known  by 
his  name,  by  which  all  existing  English  Acts  of  Parliament 
were,  at  a  single  blow,  made  applicable  to  Ireland,  and,  for 


UNION    WITH    IRELAND  49 

the  future,  the  Irish  Parliament  was  forbidden  to  pass  any 
statutes  which  had  not  previously  been  approved  of  by  the 
English  Privy  Council.  The  right  of  appeal  from  the  Irish 
courts  of  justice  to  the  English,  instead  of  the  Irish,  House 
of  Lords,  was  insisted  on ;  and,  generally  speaking,  Ireland 
was  placed  in  the  position,  not  of  a  partner,  but  of  a  sub- 
ordinate to  England. 

During  the  whole  of  the  century  following  the  enactment 
of  Poynings'  Laws,  and  even  later,  the  history  of  Ireland 
consisted  mainly  of  a  deliberate  attempt  to  exterminate  the 
Irish  elements  of  society,  not  merely  within,  but  beyond,  the 
Pale,  and  to  reduce  the  country  to  the  position  of  a  con- 
quered dependency. 

Plantation  of  Ulster 

Especially  in  the  reign  of  Elizabeth,  a  determined  attempt, 
embittered  by  religious  hostility,  at  conquest  of  the  hitherto 
Irish  districts  was  made,  with  considerable  success ;  the 
north-eastern  province  of  Ulster,  where  the  English  troops 
met  with  the  stoutest  resistance  from  the  native  Irish,  being 
ultimately  reduced  by  the  expulsion  of  the  native  inhabitants, 
and  the  settlement  on  their  lands  of  immigrant  Scots,  in  the 
famous  "  Plantation  of  Ulster  "  by  James  I.  Not  unnatu- 
rally, during  the  Civil  War  in  England,  Ireland  took  every 
opportunity  of  embarrassing  the  successful  party  by  favour- 
ing the  side  of  King  Charles,  who,  though  not  a  Catholic,  was 
far  less  hostile  to  Catholicism  (which,  in  spite  of  the  Refor- 
mation, remained  the  religion  of  the  native  Irish)  than  was 
the  English  Parliament. 

Cromwell  in  Ireland 

After  the  overthrow  and  death  of  Charles,  the  risings  in 
Ireland  were  repressed  with  terrible  severity  by  Oliver  Crom- 
well, the  great  General  of  the  English  Republic,  who  added 
to  a  stem  dislike  of  disorder  a  fanatical  hatred  of  Catholics. 


50  TERRITORIES    OF    THE    EMPIRE 

Revolution  Policy 

But  the  worst  period  of  all  for  Ireland  came  after  the  Rev- 
olution of  1688,  when  the  Irish,  having  espoused  the  cause 
of  the  Catholic  James  II,  were  defeated  by  the  new  King 
William  at  the  Battle  of  the  Boyne  (1690),  and  Ireland  was 
subjected  to  a  veritable  reign  of  terror,  with  the  double  object 
of  stamping  out  Catholicism,  and  of  excluding  Ireland  from 
the  benefits  of  the  new  "  Na-sagation  "  policy  of  England, 
which  aimed  at  making  the  English  merchant  navy  supreme 
in  the  world.  So  harsh  and  unjust  was  the  treatment  meted 
out  to  Ireland  in  the  eighteenth  century,  that  even  the  Prot- 
estant settlers  in  Ulster  became  almost  as  hostile  to  England 
as  were  the  Catholics  of  the  south  and  west.  The  climax  of 
this  oppressive  system  was  reached  in  the  year  1720,  when 
an  Act  of  the  Parliament  of  Great  Britain  formally  "  de- 
clared "  the  right  of  that  body  to  legislate  for  Ireland, 
though  Ireland  had  a  Parliament  of  its  own,  with  limits  ex- 
pressly devised  to  prevent  it  exceeding  its  powers. 

The  strain  placed  upon  the  resources  of  Great  Britain  by 
the  American  and  French  Revolutionary  wars  led,  however, 
towards  the  close  of  the  eighteenth  century,  to  a  modification 
of  this  oppressive  attitude  towards  Ireland. 

Repeal  of  the  Declabatory  Act 

The  terribly  severe  penal  laws  against  the  Catholics  were 
modified ;  and,  in  the  year  1782,  following  on  a  statute  of  the 
Irish  Parliament,  which  virtually  repealed,  not  only  the 
Declaratory  Act  of  1720  but  Poynings'  Laws  (p.  48)  them- 
selves, the  "  Declaratory  Act  "  of  1720,  above  described,  was 
formally  repealed  by  the  Parliament  of  Great  Britain,  while, 
in  the  following  year,  the  same  Parliament  passed  a  formal 
"  Act  of  Renunciation,"  by  which  the  legislative  and  judicial 
independence  of  Ireland  was  expressly  acknowledged.  From 
the  year  1783,  therefore,  until  the  year  1800,  Ireland  may 
be  said  to  have  enjoyed  complete  local  independence,  except 
for  the  important  facts,  that  all  the  Acts  of  her  Parliament 


UNION    WITH    IRELAND  51 

were  subject  to  the  royal  "  veto,"  which  was  exercised  on  the 
advice  of  British  Ministers,  and  that  the  Viceroy,  or  represent- 
ative of  the  Crown  in  Ireland,  was  chosen  by  and  from  the 
British  Ministry,  and,  naturally,  exercised  great  influence 
over  Irish  policy. 

Act  of  Union 

Unhappily,  during  the  fierce  struggle  between  Great 
Britain  and  France  which  was  waged  without  intermission 
during  the  last  few  years  of  this  period,  the  military  necessi- 
ties of  the  situation  made  it  imperative,  in  the  eyes  of  British 
Ministers,  to  put  an  end  to  Irish  independence.  More  than 
one  attack  on  the  Irish  coasts  was  made  by  the  French ; 
and,  though  these  were  repulsed  without  much  difficulty,  the 
growing  reputation  of  Bonaparte,  the  great  French  General 
and  subsequent  Emperor,  made  the  British  authorities  genu- 
inely uneasy  about  their  western  flank.  Accordingly,  the 
Cabinet  of  Pitt  determined  to  force  upon  Ireland  a  union  of 
the  type  agreed  to  by  Scotland  nearly  a  hundred  years 
before.  In  the  year  1800,  therefore,  the  Irish  Parliament 
was  absorbed  into  the  British ;  Ireland  being  accorded  twenty- 
eight  representative  peers  and  four  bishops  in  the  House  of 
Lords,  and  a  hundred  members  in  the  House  of  Commons. 
The  Irish  Privy  Council  was  not  abolished,  but  uniformity 
of  trade  and  political  privileges  was  established  between  the 
two  countries ;  while  the  continuance  of  the  Irish  legal  and 
judicial  systems,  and  the  permanence  of  the  Established 
Church  of  Ireland  (which  was  practically  a  branch  of  the 
English)  were  guaranteed.  Only,  it  must  be  remembered,  the 
Established  Church  of  Ireland  was  not  the  church  of  the  vast 
mass  of  the  Irish  people,  who  remained  Catholics ;  and  when 
it  was  disestablished  in  1869,  its  disestablishment,  though  it 
was  resented  by  the  Protestants  of  the  north,  aroused  no  hos- 
tility among  the  Catholic  Irish.  Above  all,  it  must  be  re- 
membered that  the  Irish  Union,  however  just  and  impartial 
in  form,  has  always  laboured  under  the  great  defect  that, 
unlike  the  Union  between  England  and  Scotland,  it  was  not 


52  TERRITORIES    OF    THE    EMPIRE 

the  voluntary  act  of  two  free  peoples,  each  seeking  only  a 
reasonable  and  mutual  advantage,  but  the  act  of  a  stronger 
against  a  weaker  party,  done  almost  wholly  for  the  advan- 
tage of  the  former,  and  forced  upon  the  reluctant  and  unreal 
consent  of  the  latter  by  an  unscrupulous  use  of  corruption 
and  social  pressure. 

Working  of  the  Union 

Moreover,  the  vestiges  of  the  older  system  which  were  left 
themselves  combined  badly  with  the  new  system  set  up  in 
1800.  The  Lord-Lieutenant  was  not  abolished,  but  contin- 
ued to  hold  his  court  with  semi-regal  state  in  Dublin,  and 
to  make  "  progresses  "  throughout  the  island.  But  his 
power  tended  rapidly  to  pass  into  the  hands  of  an  official 
who  was  nominally  his  subordinate,  the  Chief  Secretary  for 
Ireland,  who  was  frequently  a  member,  not  merely  of  the 
Viceroy's  Council,  but  of  the  Cabinet  in  London,  which  could 
make  or  mar  the  fortunes  of  the  Lord-Lieutenant.  Thus  the 
Lord-Lieutenant  became  a  mere  figure-head,  and  his  court  a 
shadow ;  for  the  experiment,  occasionally  tried,  of  giving  the 
Lord-Lieutenant  a  seat  in  the  Cabinet,  only  accentuated  the 
real  vice  resulting  from  the  Union,  viz.  absentee  government. 

Evpn  worse  followed.  Had  the  government  of  Ireland 
really  been  in  the  hands,  either  of  the  Lord-Lieutenant,  who 
was  usually  a  great  nobleman,  often  animated  by  the  best 
intentions  and  aloof  from  petty  jealousies,  or  by  the  Chief 
Secretary  for  Ireland,  who,  though  not  a  Secretary  of  State, 
and  nominally  under  the  control  of  the  Home  Office,  was 
nearly  always  an  ambitious  and  rising  politician  desiring 
nothing  better  than  to  see  a  happy  and  contented  Ireland, 
the  system  set  up  at  the  Union,  though  vicious,  might  have 
been  tolerable.  But  both  the  Lord-Lieutenant  and  the  Chief 
Secretary  were  temporary  officials,  shifting  frequently  as  the 
result  of  English  party  changes,  who  found  themselves  very 
largely  at  the  mercy  of  the  permanent  officials  at  "  the 
Castle,"  i.e.  the  official  residence  of  the  Lord-Lieutenant  in 
Dublin.     These  permanent  officials,  though  they  were  Irish- 


UNION    WITH    IRELAND  53 

men,  were,  at  any  rate  during  the  early  part  of  the  century 
which  followed  the  Union,  almost  invariably  chosen  from  a 
strictly  limited  class  of  great  Protestant  families  which  had 
secured  the  monopoly  of  office  in  the  days  in  which  Catholi- 
cism, to  say  nothing  of  sympathy  with  Irish  self-government, 
was  a  fatal  bar  to  employment  by  the  State.  This  little 
group  of  families,  in  the  days  when  Civil  Service  examinations 
were  unknown,  established  a  close  system  of  mutual  bargain- 
ing, whereby  the  executive  offices  in  Ireland,  high  as  well  as 
low,  were  carefully  restricted  to  those  who  had  the  greatest 
interest  in  maintaining  a  thoroughly  unwholesome  monopoly ; 
and  thus  the  daily  government  of  Ireland  exhibited  the  worst 
features  of  bureaucracy,  while  the  larger  questions  became 
the  sport  of  political  parties  in  England,  formed  on  lines 
which  took  no  account  of  Irish  problems.  Thus,  also,  though 
Ireland  appeared  to  have  institutions  of  her  own  (she  even 
had  a  separate  Treasury  till  1816),  they  were  not  really 
expressions  of  local  feeling,  but  close  Boards,  composed  en- 
tirely of  officials,  either  sent  by  the  Treasury  from  England 
to  take  charge  of  the  sub-departments  of  the  Imperial 
offices,  or  appointed  in  Ireland,  by  the  influences  above  de- 
scribed, from  a  narrow  circle  of  persons  with  fixed  ideas  and 
strong  sectarian  prejudices.  Outside  was  an  Ireland  of 
which  they  knew  very  little,  and  with  which  they  sympathized 
less.  The  administration  of  Ireland  was,  and  was  probably 
intended  to  be,  in  the  nature  of  a  garrison  holding  down  a 
conquered  country,  and  was  all  the  more  detested  that  it 
was  largely  composed  of  persons  who,  though  strongly  op- 
posed in  sentiment  to  the  majority  of  the  population,  were 
nominally  Irish.  It  was  not  until  the  latter  part  of  the 
nineteenth  century,  with  the  establishment  of  the  Education 
Boards,  the  Department  of  Agriculture  and  Technical  In- 
struction, and  the  National  Insurance  Commission,  that  the 
administration  of  Ireland  began  to  assume  anything  like 
a  native  character. 


54  TERRITORIES    OF    THE    EMPIRE 

Home  Rule  and  the  Act  of  1914 

It  is  hardly,  therefore,  a  matter  of  surprise  to  find  that, 
almost  ever  since  its  date,  the  Irish  Act  of  Union  has  encoun- 
tered severe  opposition  and  attempts  at  repeal.  These  agi- 
tations have  taken  various  forms,  into  which  we  cannot  here 
enter.  It  is  sufficient  to  say  that,  after  a  severe  struggle,  and 
a  resort  to  the  exceptional  provisions  of  the  Parliament  Act 
of  1911  (p.  150),  the  Government  of  Ireland  Act  of  1914 
received  the  royal  assent  just  on  the  outbreak  of  the  great 
European  War,  and  is  now  actually  on  the  statute  book.  By 
this  Act,  the  Irish  Parliament  is  to  be  re-established,  with 
complete  control  over  purely  Irish  affairs,  subject  to  certain 
reservations,  and  to  the  supreme  authority  of  the  Imperial 
Parliament,  in  which  Ireland  is  still  to  be  represented,  though 
in  diminished  numbers.  The  establishment  of  an  Irish  Min- 
istry, responsible,  on  English  lines,  to  the  Irish  Parliament, 
is  contemplated;  and,  subject  to  vested  interests,  the  entire 
patronage  of  the  Irish  civil  service  is  to  be  vested  in  the 
Irish  Ministry.  The  existing  Irish  laws  and  judicial  system 
are  to  continue  until  altered  by  the  Irish  Parliament ;  except 
that  the  final  appeal  from  the  Irish  courts  is  to  lie,  not  to 
the  Irish  Senate  (or  House  of  Lords),  but  to  the  Judicial 
Committee  of  the  Imperial  Privy  Council  (p.  269).  It  is, 
however,  not  necessary  to  go  now  into  the  details  of  this  long 
and  complicated  statute ;  because,  naturally,  on  the  outbreak 
of  the  European  War,  its  coming  into  operation  (which 
would  have  been  an  event  of  the  greatest  delicacy)  was  sus- 
pended, and,  in  the  meanwhile,  dissatisfaction  with  its  pro- 
visions has,  on  various  grounds,  become  so  strong,  that  it  is 
now  generally  regarded  as  doomed  to  repeal.  Meanwhile, 
the  constitutional  position,  as  set  up  by  the  Act  of  Union  of 
1800,  remains  legally  binding;  and  statutes  of  the  Imperial 
Parliament,  unless  otherwise  expressed,  bind  Ireland  as  well 
as  Great  Britain. 


SELF-GOVERNMENT  65 

Isle  of  Man 

It  should  be  mentioned  here  that,  unlike  the  various  islands 
near  the  British  coast,  such  as  the  Isle  of  Wight,  Lundy 
Island,  the  Orkneys,  and  the  Shetlands,  which  are,  for  gov- 
ernment purposes,  parts  of  the  counties  to  which  they  are 
adjacent,  the  larger  Isle  of  Man  and  the  "  Channel  Islands  " 
(Jersey,  Guernsey,  Alderney,  etc.)  are  not  parts  of  the 
United  Kingdom,  though  they  are  parts  of  the  British 
Islands.  The  Isle  of  Man,  formerly  a  possession  of  the  Kings 
of  Norway,  after  being  long  in  the  hands  of  feudal  lords, 
such  as  the  Earls  of  Derby  and  the  Dukes  of  Atholl,  came 
directly  under  the  British  Crown  in  the  year  1765.  But  it 
retains  its  ancient  government  under  a  Governor  (appointed 
by  the  Crown)  and  Parliament  or  "  Tynwald  "  Court  of  two 
Houses,  with  its  own  laws  and  law  courts. 

Channel  Islands 

The  "  Channel  Islands  "  are  the  last  fragments  of  William 
the  Conqueror's  Duchy  of  Normandy,  which  survived  to  the 
English  Crown  when  Normandy  was  re-conquered  by  the 
French  Kings  in  the  twelfth  century.  Their  ancient  and 
primitive  forms  of  government,  like  those  of  the  Isle  of  Man, 
remain  to  the  present  day ;  and,  consequently.  Acts  of  the 
Imperial  Parliament  are  not  in  force  in  either  of  these  de- 
pendencies, unless,  of  course,  they  are  expressed  to  apply 
to  them.  The  Isle  of  Man  and  the  Channel  Islands  resemble, 
therefore,  very  much  the  class  of  self-governing  Dominions, 
to  which  we  must  now  turn  our  attention. 

The  Self-governing  Dominions 

(2)  The  self-governing  Dominions,  the  most  important 
of  the  possessions  of  the  Crown  "  beyond  the  four  seas," 
comprise  the  Dominion  of  Canada,  the  Federal  Common- 
wealth of  Australia,  the  Union  of  South  Africa,  the  Dominion 
of  New  Zealand,  and  the  Colony  (the  oldest  colony  of  the 
Empire)  of  Newfoundland.    In  area,  in  wealth,  in  the  energy 


56  TERRITORIES    OF    THE    EMPIRE 

and  intelligence  of  their  populations,  in  their  splendid  loyalty 
to  the  Empire,  in  their  unbounded  possibilities  of  future 
greatness,  these  vast  possessions  are  something  unique  in  the 
world's  history,  and  deserve  far  more  study  than  has  been 
devoted  to  them.  Here,  however,  it  is  only  possible  to  point 
out  two  or  three  of  the  leading  features  which  characterize 
their  membership  of  the  British  Empire. 

Racial  Ties 

In  the  first  place,  then,  it  should  be  obseryed  that  these 
self-governing  communities  are  intimately  connected  with  the 
United  Kingdom,  the  centre  of  the  Empire,  not  only  by  the 
tie  of  allegiance,  but  by  the  ties  of  blood,  speech,  and  senti- 
ment. In  other  words,  they  are,  for  the  most  part,  "  colo- 
nies "  in  the  truest  sense  of  the  word,  viz.  settlements  of  emi- 
grants from  the  mother-country,  not  conquests  of  alien 
peoples.  This  is  not,  of  course,  universally  true.  A  good 
deal  of  eastern  Canada  was  won  by  hard  fighting  from  the 
rival  French  colonists ;  Montcalm  as  well  as  Wolfe  is  one  of 
Canada's  national  heroes.  There  has  been  much  fighting  be- 
tween the  Dutch  and  the  English  in  South  Africa;  because, 
though  English  adventurers  first  touched  at  the  Cape  of 
Good  Hope,  and  even  formally  annexed  Table  Bay,  their  pro- 
ceedings were  not  adopted  by  the  British  Government,  with 
the  result  that  the  Dutch  settled  there  in  the  middle  of  the 
seventeenth  century,  and  remained  masters  of  the  Cape  until 
the  end  of  the  eighteenth.  The  province  of  Quebec  and  the 
Dutch  provinces  of  South  Africa  (Cape  Colony,  Transvaal, 
and  Orange  River  State)  are  not,  therefore,  like  the  other 
self-governing  Dominions,  countries  in  which  the  English 
"  common  law  "  prevails ;  but  are  governed,  at  least  in  mat- 
ters aflFecting  the  private  lives  of  the  inhabitants,  by  French 
and  Roman-Dutch  law  respectively.  Still,  the  self-governing 
Dominions  are,  for  the  most  part,  British  in  a  double  sense. 


COLONIAL    FEDERATION  67 

The  "  Common  Law  " 

From  this  fact  follows  one  very  important  consequence. 
It  is  one  of  the  first  rules  of  British  constitutional  law,  that 
the  privileges  of  British  citizenship  follow  the  British  set- 
tler who  goes  out  to  build  up  a  home  in  the  wilderness.  He 
takes  with  him  that  "  common  law  "  which  he  enj  oyed  at 
home,  or,  at  least,  so  much  of  it  as  is  consistent  with  the 
(Circumstances  of  his  position.  Even  before  his  colony  has 
received  any  grant  of  privileges  from  the  Crown,  he  is  en- 
titled to  the  protection  of  the  constitutional  guarantees 
which  guarded  him  at  home,  particularly  against  the  arbi- 
trary action  of  the  Crown  and  its  officials.  The  Crown 
may,  if  it  pleases,  grant  him  special  local  privileges,  by  Char- 
ter or  Letters  Patent;  but  it  cannot,  by  Orders  in  Council 
or  otherwise,  impose  new  burdens  upon  him.  That  can  only 
be  done  by  an  Act  of  the  Imperial  Parliament ;  and,  as  a  mat- 
ter of  fact,  the  central  control  of  the  colonies  of  British  set- 
tlers, what  there  is  of  it,  has,  at  least  ever  since  the  American 
Revolution,  been  exercised  by  Parliament. 

Federal  Ties 

A  second  point  to  notice  is,  that  the  largest  and  most  pop- 
ulous of  these  "  self-governing  "  Dominions  are  not  single 
communities,  but,  as  has  been  hinted  above,  groups,  formed 
out  of  pre-existing  self-governing  colonies,  which  latter  re- 
tain a  considerable  share  of  independence,  not  merely  towards 
the  Imperial  Government,  but  towards  their  own  federal  au- 
thorities. It  is  true  that  the  Imperial  Government  does  not 
communicate  directly  with  the  "  Provinces  "  of  the  Dominion 
of  Canada,  or  of  the  Union  of  South  Africa,  though  it  does 
with  the  "  States  "  of  the  Australian  Commonwealth.  But 
the  "  self-governing  "  powers  of  the  provinces  of  Canada,  as 
well  as  of  the  States  of  Australia,  are  guaranteed  by  law; 
and  any  breach  of  them  by  the  Dominion  governments  can 
be  redressed  by  appeal  to  the  Judicial  Committee  of  the  Im- 
perial Privy  Council.     Only  it  should  be  remembered,  that. 


58  TERRITORIES    OF    THE    EMPIRE 

while  these  self-governing  powers  are  all  probably  secure, 
they  are  not  all  equally  extensive.  Thus,  while  the  British 
North  America  Act  of  1867,  and  the  Union  of  South  Africa 
Act  of  1909,  confer  only  definite  and  express  powers  on  the 
provinces  of  Canada  and  South  Africa  respectively,  thus,  by 
implication,  leaving  all  other  powers  of  "  self-government  " 
in  the  hands  of  the  Dominion  Parliaments  and  Ministries,  the 
Australian  Commonwealth  Act  of  1900  reverses  this  process, 
and  confers  only  definite  and  express  powers  on  the  federal 
government,  thus  by  implication,  leaving  all  other  pow- 
ers of  "  self-government "  with  the  different  colonies,  or 
"  states."  One  significant  mark  of  this  difference  is,  that  the 
Lieutenant-Governors,  or  Administrators,  of  the  Provinces 
of  Canada  and  South  Africa,  are  appointed  by  the  Dominion 
Governments ;  while  the  Governors  of  the  Australian  States 
are  appointed  directly  by  the  Crown,  of  course  on  the  ad- 
vice of  the  Secretary  of  State  for  the  Colonies.  Another  is, 
that  the  statutes  of  the  provincial  legislatures  require  the 
assent,  not  only  of  the  provincial  Lieutenant-Governor  or 
Administrators,  but  of  the  Dominion  authorities ;  while  the 
legislation  of  the  various  Australian  States  is  not  subject  to 
this  double  "  veto."  The  provinces  of  Canada  are  now 
Ontario,  Quebec,  Nova  Scotia,  New  Brunswick,  Manitoba, 
British  Columbia,  Prince  Edward  Island,  Alberta,  and  Sas- 
katchewan ;  the  states  of  Australia  are  New  South  Wales, 
Victoria,  Tasmania,  Queensland,  South  Australia,  and  West- 
ern Australia;  the  provinces  of  South  Africa  are  the  Cape 
Colony,  Natal,  the  Transvaal,  and  the  Orange  River  State. 
The  Dominion  of  New  Zealand  was  at  one  time  a  federal 
colony,  somewhat  of  the  Canadian  type;  but  the  provincial 
system  was  abandoned  in  1876.  Newfoundland  has  always 
been  a  single  community. 

"  Responsible  Government  " 

By  far  the  most  important  feature  of  the  self-governing 
Dominions  is,  however,  the  almost  complete  independence  of 
Imperial  control  which  they  enjoy,  under  the  name  of  "  re- 


SELF-GOVERNMENT  59 

sponsible  government."  Not  only  have  they,  in  nearly  all 
cases,  Parliaments  consisting  of  two  Houses,  called  by  vari- 
ous names,  which  exercise  (subject  to  federal  rights)  almost 
unfettered  power  over  the  affairs  of  their  communities ;  but 
their  respective  Governors,  or  Governors-General  (as  the 
Executive  heads  of  the  Dominion  governments  are  called), 
though  appointed  by  the  Crown,  are  bound  to  follow,  in  al- 
most all  respects,  the  advice  of  their  Cabinets  for  the  time 
being,  which,  like  the  Imperial  Cabinet  in  Downing  Street, 
are  composed  of  Ministers  chosen  for  their  influence  in  the 
local  legislature,  and  depending  on  the  support  of  that  legis- 
lature for  their  continuance  in  office.  This  combination  of 
legislative  and  executive  independence  enables  the  Govern- 
ment to  regulate  its  affairs  almost  wholly  by  the  local  public 
opinion  of  the  day,  even  to  the  extent  of  adopting  (as  has 
been  done  in  most  cases)  a  financial  system  not  only  different 
from,  but  wholly  opposed  to,  the  system  in  force  in  the  United 
Kingdom,  and  for  this  purpose,  even,  in  some  cases,  to  enter 
into  direct  relations  with  foreign  states,  through  commercial 
treaties  or  conventions  negotiated  by  the  self-governing  Min- 
istries, which  are  afterwards  formally  signed  by  Imperial 
diplomatic  representatives.  But  perhaps  the  supreme  ex- 
ample of  self-government  is  to  be  found  in  the  fact  that, 
though  the  control  of  all  the  expeditionary  forces  of  the 
Empire,  naval  and  military,  passes,  on  the  outbreak  of  war, 
automatically  to  the  Imperial  War  Office  and  Admiralty,  yet, 
in  time  of  peace,  the  raising,  equipping,  and  control  of  the 
Dominion  forces  remain  in  the  hands  of  their  respective  Gov- 
ernments, and,  even  in  war,  no  compulsory  levy  of  forces,  or 
contribution  to  the  cost  of  the  war,  is  imposed  on  the  self- 
governing  Dominions  by  the  Imperial  Government.  The 
splendid  contributions  of  Canada,  Australia,  South  Africa, 
New  Zealand,  and  Newfoundland  to  the  fighting  forces  of  the 
Empire,  are  voluntary  in  this  important  sense.  Nothing  has 
better  illustrated  the  fundamental  principle  of  British 
colonial  policy,  that  all  the  Dominions  are,  and  always  have 
been,  regarded  by  the  Imperial  Government,  not  as  depend- 


60  TERRITORIES    OF    THE    EMPIRE 

encies  to  be  exploited  for  the  benefit  of  the  central  authority, 
but  as  voluntary  partners  in  a  great  Imperial  commonwealth. 
To  many  foreign  critics  such  a  system  appears  to  be  sheer 
political  lunacy;  but  the  results  challenge  a  comparison 
which  probably  causes  a  good  deal  of  envy  to  mingle  with 
their  contempt. 

It  is  not  possible,  in  a  work  of  this  kind,  to  go  into  details 
of  the  institutions  by  which  Dominion  self-government  is 
carried  on,  and  the  differences  between  the  corresponding 
institutions  in  the  different  self-governing  Dominions.  But 
a  short  general  description  of  these  institutions  is  necessary. 

Self-governing  Parliaments 

In  each  of  these  communities  there  is  a  representative 
Parliament,  in  the  older  and  more  important  cases  consisting 
of  two  Houses,  which  is  the  supreme  authority  in  the  com- 
munity. The  more  important  House  is,  in  every  case,  elected 
on  a  very  wide  franchise,  i.e.  the  larger  number  of  adult  resi- 
dents (in  several  cases  female  as  well  as  male)  have  votes  for 
it ;  and,  moreover,  General  Elections  are  frequent,  usually  at 
least  every  three  or  four  years.  Where  there  is  a  second  or 
"  Upper  "  House,  it  consists  sometimes,  as  in  the  case  of 
Canada,  New  Zealand,  Newfoundland,  and  the  provinces  and 
states  of  Quebec,  Nova  Scotia,  New  South  Wales,  and  Queens- 
land, of  members  nominated  by  the  Governor-General  or 
Governor  on  the  advice  of  his  Ministers,  usually  for  life; 
in  the  states  of  Victoria,  South  Australia,  Tasmania,  and 
Western  Australia,  it  is  composed  of  members  elected  for 
fairly  long  periods  by  a  restricted  electorate ;  while  the  Sen- 
ate or  "  Upper "  House  of  the  South  African  Union  is 
partly  nominated  and  partly  elective.  It  must  not  be  sup- 
posed, however,  that  the  relations  between  the  British 
Houses  of  Lords  and  Commons  at  Westminster  are  exactly 
reproduced  in  the  relations  of  the  two  Houses  of  a  "  bi- 
cameral "  Dominion  Parliament ;  that  is  a  matter  which  is 
usually  regulated  by  the  colonial  Constitution  Act  itself.  In 
the  federal  constitutions,  the  chief  function  of  the  "  Upper  " 


SELF-GOVERNING    MINISTRIES  61 

House  is,  to  guard  the  independence  and  equality  of  each 
member  of  the  federal  group,  and  to  prevent  a  combination 
of  the  larger  states  or  provinces  in  the  federal  Parliament 
swamping  the  smaller. 

Dominion  Executives 

While  in  each  self-governing  Dominion  the  great  mass 
of  the  government  officials  are,  as  in  England,  chosen  by 
some  system  of  examination  or  selection,  and  spend  the 
whole  of  their  lives  in  the  government  service,  the  higher 
officials,  or  Ministers,  are  selected  in  accordance  with  the 
views  for  the  time  being  prevailing  in  the  "  Lower  "  or  popu- 
lar Houses  of  the  various  Parliaments,  and  resign  their  offices 
immediately  they  cease  to  hold  the  confidence  of  that  House. 
As  in  the  United  Kingdom,  this  important  rule  depends 
chiefly,  if  not  entirely,  upon  custom  or  convention,  not  on 
express  law ;  and,  when  it  was  decided  to  introduce  "  respon- 
sible government "  into  the  Australian  Constitutions,  the 
framers  of  these  Constitutions  were  somewhat  at  a  loss  to 
know  how  to  provide  for  it.  Ultimately,  it  was  found  that, 
so  far  as  express  law  was  concerned,  the  only  provision  which 
was  needed  was  a  clause  in  the  Constitution  Acts  to  the  effect 
that  the  members  of  the  Executive  Council,  or  Cabinet,  should 
be  appointed,  not,  as  in  "  Crown  "  colonies,  directly  by  the 
Crown,  on  the  advice  of  a  distant  Secretary  of  State,  but 
by  the  Governor  or  Governor-General,  who  is  always  on  the 
spot,  and  can  receive  resignations  and  make  new  appoint- 
ments without  delay.  But  the  Ministers  thus  appointed  are 
described  as  "  Ministers  of  the  Crown  "  for  the  colony ;  and, 
though  their  precise  legal  position  is  a  little  doubtful,  in 
practice  they  exercise,  within  the  limits  of  their  community, 
powers  similar  to  those  exercised  by  Ministers  in  the  United 
Kingdom,  except  that  the  actual  decision  in  pardoning  or 
reprieving  criminals  condemned  to  death  in  some  cases  rests 
with  the  Governor,  as  the  direct  representative  of  the  Crown, 
and  that  the  Governor  also  exercises  more  personal  discre- 
tion than  the  Crown  in  the  United  Kingdom,  with  regard  to 


62  TERRITORIES    OF    THE    EMPIRE 

granting  or  withholding  the  royal  assent  to  legislation  hy 
the  Parliament.^ 

Dominion  Judicatures 

Most  of  the  Dominion  Constitution  Acts  contain  definite 
provision  for  maintaining  the  high  standard  of  judicial  inde- 
pendence and  integrity  prevailing  throughout  the  Empire, 
by  securing  fixity  of  tenure  and  income  to  the  occupants  of 
the  higher  judicial  posts,  both  federal  and  "  state  "  or  pro- 
vincial; and  most  of  them  expressly  reserve  the  right  of 
appeal,  at  least  in  important  cases,  from  the  colonial  courts 
to  the  Judicial  Committee  of  the  Imperial  Privy  Council. 
But  the  selection,  even  of  the  superior  judges,  and  the  num- 
bers, jurisdiction,  and  terms  of  office  of  the  subordinate 
judges  and  magistrates,  are  left  entirely  to  the  governments 
concerned,  which,  it  is  only  just  to  say,  have  most  admirably 
in  this  respect  maintained  the  high  standard  of  the  British 
judiciary.  A  sketch  of  the  form  assumed  by  the  judicial 
institutions  of  the  self-governing  Dominions  is  reserved  for 
a  later  chapter  (p.  278). 

All  the  self-governing  Dominions  have  also  more  or  less 
developed  systems  of  local  government  in  the  narrower  sense 
of  the  word,  comprising  shire  and  borough  councils,  sanitary 
boards,  and  the  like,  engaged  in  providing  and  maintaining 
the  public  amenities  of  civilized  life,  such  as  roads,  bridges, 
water-supply,  and  drainage.  A  brief  account  of  these  is, 
however,  reserved  for  a  subsequent  stage  (Chapter  XIV)  ; 
and  this  chapter  must  conclude  with  an  attempt  to  answer  a 
question  which  will  naturally  have  suggested  itself  to  the 
student  who  has  followed  this  account  of  Dominion  self-gov- 
ernment and  independence.  In  what  way  then,  can  these 
"  self-governing  "  Dominions  be  said  legally  to  form  part  of 

*  In  Canada  it  is  claimed  that,  even  in  this  matter,  the  Governor-General 
is  bound  to  follow  the  advice  of  his  Ministers.  On  the  other  hand,  it  is  not 
admitted  that,  in  advising  the  Governor-General  as  to  his  attitude  towards 
provincial  legislation  (p.  57),  the  Dominion  Cabinet  is  bound  merely  to  be 
guided  by  the  consideration  of  the  legality  (as  distinct  from  the  wisdom)  of 
the  proposed  provincial  measure. 


IMPERIAL    TIES  63 

the  British  Empire  at  all,  except,  perhaps,  as  owning  a  gen- 
eral allegiance  to  the  British  Crown? 

Imperial  Ties 

There  are,  in  fact,  four  legal  ties  which,  in  addition  to 
the  most  valuable  tie  of  all,  viz.  the  sympathy  and  good-will 
of  the  colonists  themselves  for  the  Empire  of  which  they 
form  part,  and  their  unifying  loyalty  to  the  Crown,  bind  the 
self-governing  Dominions  to  the  Empire. 

Dominion  Governors 

The  first  is  the  presence  at  the  head  of  each  of  them,  of  a 
direct  representative  of  the  Crown,  a  Governor-General, 
Governor,  Lieutenant-Governor,  or  Administrator,  as  the 
case  may  be.  Even  where  this  official  is  not  directly  ap- 
pointed by  the  Crown  on  the  advice  of  the  Secretary  of  State 
(as  in  the  case  of  the  provinces  of  Canada  and  South  Africa), 
he  is  still  the  representative  of  the  Crown,  acting  in  the  name 
of  the  Crown,  and  bound  to  guard  the  interests  of  the  Crown. 
In  the  more  important  cases,  he  is  appointed  directly  by  the 
Crown,  by  Letters  Patent,  accompanied  by  Instructions 
which  profess  to  describe  the  scope  of  his  powers.  In  theory, 
these  Instructions  are  important;  because,  if  they  set  limits 
to  the  authority  of  the  Governor,  presumably  they  set  limits 
also  to  the  powers  of  his  Cabinet,  on  whose  advice  he  exercises 
his  authority.  In  fact,  they  are  so  widely  expressed,  that 
they  have  very  little  real  influence  over  the  conduct  of  busi- 
ness; and,  moreover,  in  some  self-governing  units,  at  least, 
the  Ministers,  though  appointed  by  the  Governor,  are  for- 
mally described  as  Ministers  of  the  Crown. 

The  Governor  himself,  though  the  direct  representative  of 
the  Crown,  and  thus  a  symbol  of  the  unity  of  the  Empire,  is 
a  British  subject,  and  thus,  like  all  British  subjects,  official 
as  well  as  private,  subject  to  the  Rule  of  Law  previously  de- 
scribed (p.  34).  If  he  does  any  act  contrary  to  law,  he  can 
be  sued   (and,  perhaps,  even  prosecuted  criminally)   in  the 


64  TERRITORIES    OF    THE    EMPIRE 

courts  of  his  own  Dominion ;  and,  after  his  return  to  the 
United  Kingdom  (for  he  seldom  holds  office  as  Governor  for 
more  than  five  years)  he  can  certainly  be  prosecuted  and  sued 
in  the  English  courts  for  illegal  acts  done,  either  officially  or 
in  his  private  capacity,  in  the  Dominion.  The  latter  rule 
is  laid  down  by  express  Act  of  Parliament.  Needless  to  say, 
also,  that  a  Governor  who  acts  indiscreetly,  even  though  not 
illegally,  can  be  recalled  or  suspended  from  office  by  the  King, 
acting  on  the  advice  of  the  Secretary  of  State.  Moreover,  in 
the  self-governing  Dominions  (though  not,  of  course,  in  the 
"  Crown  colonies  ")  the  Governor-General  or  Governor  is, 
as  has  been  said,  expected,  in  almost  all  the  daily  affairs  of 
government,  to  act  upon  the  advice  of  his  Ministers,  to  re- 
frain from  taking  any  direct  part  in  current  politics,  espe- 
cially in  party  questions,  to  express  no  personal  preferences 
in  the  choice  of  Ministers  or  policy,  and,  generally,  to  act 
as  a  constitutional  ruler  in  the  Dominion,  on  the  model  of 
the  King  in  the  United  Kingdom.  To  him,  however,  are 
open,  though  in  a  minor  degree,  the  great  opportunities  of 
unofficial  and  private  influence  which,  as  we  have  tried  to 
explain  (p.  38),  make  the  personal  character  of  the  King  so 
important  for  the  welfare  of  his  subjects.  The  greatest 
care  is  exercised  by  the  Crown  in  the  choice  of  Governors 
and  Governors-Generals.  The  latter  are  often  selected  from 
members  of  the  House  of  Lords  who  have  held  high  political 
office  in  the  United  Kingdom.  In  one  recent  and  well-known 
case,  a  member  of  the  Royal  House  filled  the  office  of  Gover- 
nor-General with  great  distinction  for  an  exceptionally  long 
term.  The  Governors  are  usually  either  distinguished  mem- 
bers of  the  House  of  Commons,  or  successful  administrators 
who  have  won  their  spurs  in  the  "  Crown  colonies." 

The  High  Commissioners  and  Agents-General, 

Mention  of  the  personal  and  official  ties  between  the  United 
Kingdom  and  the  self-governing  Dominions  would  not  be 
complete  without  a  brief  reference  to  the  valued  representa- 
tives of  those  Dominions  at  the  seats  of  Empire.    Just  as  the 


IMPERIAL    TIES  65 

Crown  sends  to  each  Dominion  a  Governor  or  Governor- 
General,  so  the  Colony  or  Dominion  sends  to  London  an 
Agent-General  or  High  Commissioner,  to  represent  it  in 
dealings  with  the  Secretary  of  State  and  other  Imperial  and 
British  authorities,  as  well  as  with  private  firms  and  individu- 
als. This  valuable  system  of  exchange  of  ideas  goes  back  to 
the  days  of  the  great  Benjamin  Franklin ;  and  the  opportuni- 
ties which  it  affords  for  strengthening  the  bonds  of  social, 
literary,  and  economic  intercourse  between  the  United  King- 
dom and  the  Dominions,  are  almost  unlimited.  The  High 
Commissioners  are  virtually  in  the  position  of  colonial  am- 
bassadors, and  they  and  the  Agents-General  occupy  hon- 
oured positions  at  all  Imperial  ceremonies ;  while  the  splen- 
dour of  the  buildings  in  which  some  of  them  transact  their 
business  is  a  symbol  of  the  rapidly  growing  wealth  and  im- 
portance of  the  Overseas  Empire. 

Assent  to  Dominion  Legislation 

The  second  legal  tie  which  binds  a  self-governing  Dominion 
to  the  Empire  is  the  necessity  for  the  Crown's  assent  to  the 
legislation  of  a  Dominion  or  Colonial  Parliament.  Unlike 
the  so-called  "  veto  "  of  the  Crown  in  the  Imperial  Parlia- 
ment, the  power  of  withholding  assent  to  proposed  colonial 
legislation  is  a  reality ;  though  it  is  exercised  with  care  and 
reluctance.  It  may  be  exercised  in  more  than  one  way.  The 
Governor,  by  whom  the  assent  of  the  Crown  is  first  intimated, 
may  refuse  that  assent.  This  he  rarely  does ;  unless  the  pro- 
posed legislation  is  clearly  beyond  the  powers  of  the  Parlia- 
ment in  question.  If  he  thinks  that,  whilst  not  illegal,  it  is 
so  contrary  to  Imperial  interests  or  the  general  principles  of 
British  law  that  it  requires  reconsideration,  he  "  reserves  " 
it  for  the  pleasure  of  the  Crown ;  and,  in  some  cases,  the 
colonial  Constitution  Act  requires  that  all  Bills  on  certain 
subjects  shall  be  so  reserved.  In  either  of  these  cases,  if 
the  Crown's  assent  is  not  given,  the  measure  never  becomes 
law.  Or,  finally,  even  if  the  Governor  has  expressed  the 
Crown's   assent,   the  Crown  may,   on  learning  of  the   step. 


66  TERRITORIES    OF    THE    EMPIRE 

revoke  the  assent  by  an  Order  in  Council;  and  thereupon  the 
Act  ceases  to  be  law  from  the  date  named  in  the  Order. 

Conflict  with  Imperial,  Statutes 

In  the  third  place,  any  provision  of  a  colonial  Act  of 
Parliament,  even  of  a  self-governing  Dominion,  which  is  in- 
consistent with  the  provisions  of  an  Imperial  Act  of  Parlia- 
ment intended  to  apply  to  the  locality,  is  void.  This  rule  is 
laid  down  by  an  Imperial  statute  of  the  year  1865,  the  Colo- 
nial Laws  Validity  Act,  which,  curiously  enough,  was  not 
intended  to  limit  the  powers  of  the  self-governing  Dominions, 
but  to  extend  them.  All  sorts  of  objections,  based  mainly  on 
the  wording  of  the  Constitution  Act  of  South  Australia,  had 
been  raised  against  the  validity  of  the  statutes  of  that  state; 
and  it  was  desired  to  get  rid  of  them  once  for  all.  Accord- 
ingly, the  Act  of  Parliament  referred  to  provides  that  any 
"  colonial  law  "  (including  an  Order  in  Council)  which  con- 
flicts with  the  provisions  of  an  Imperial  statute  intended  to 
apply  to  the  colony  in  question,  shall  be  deemed  void,  but 
that  no  other  such  law  shall  be  deemed  inconsistent  with 
"  English  law,"  which  in  this  case,  undoubtedly,  means  Im- 
perial law,  including  the  "  common  law  "  (p.  57). 

Imperial  Legislation 

This  statute  brings  us  naturally  to  the  fourth  and  last 
of  the  legal  ties  by  which  the  unity  of  the  Empire  is  ex- 
pressed with  regard  to  the  self-governing  Dominions.  The 
so-called  Imperial  Parliament  of  the  United  Kingdom  claims 
the  power  to  legislate  for  all  parts  of  the  Empire,  including 
the  self-governing  Dominions.  As  a  matter  of  fact,  this 
power  is  very  rarely  exercised ;  and  it  is  important  to  remem- 
ber, that  no  Act  of  the  Imperial  Parliament  passed  since  the 
founding  of  a  colony  is  in  force  in  that  colony,  unless  it 
(expressly  or  by  necessary  implication  in  the  Act  itself)  is 
made  to  apply  to  that  colony.  Such  Acts  of  Parliament  are 
very  rare.    They  never  affect  revenue  or  tax-granting;  that 


IMPERIAL    LEGISLATION  67 

point  may  be  regarded  as  settled  by  the  American  Revolu- 
tion. The  few  which  have  in  recent  years  been  passed  deal 
with  such  subjects  as  British  nationality  and  the  position 
of  aliens  (obviously  an  Imperial  matter),  merchant  shipping, 
and  copyright  —  all  subjects  on  which  uniformity  is  emi- 
nently desirable.  But  it  is  noteworthy,  that  even  the  impor- 
tant Copyright  Act  of  1911  is  not  imposed  on  the  self-gov- 
erning Dominions ;  it  is  left  to  them  to  adopt  it  or  not,  as 
they  think  fit.  It  may  be  that  the  recent  and  excellent  steps 
of  admitting  Dominion  Ministers  to  the  Imperial  Cabinet, 
and  of  holding  periodical  Conferences  of  Imperial  represent- 
atives, may  somewhat  increase  the  amount  of  Imperial  legis- 
lation. But  even  this  is  doubtful;  for  it  seems  to  be  gener- 
ally agreed  that  the  time  is  not  yet  ripe  for  a  true  Imperial 
Parliament,  containing  elected  representatives  from  the  Over- 
seas Empire.  Meanwhile,  the  United  Kingdom  and  the  self- 
governing  Dominions  rest  together  on  the  solid  fact  that,  to 
the  outside  world,  they  present  a  united  front  under  the 
Imperial  Crown.  If  one  of  them  is  attacked,  or  even  threat- 
ened, from  without,  all  rush  to  arms  to  repel  the  invader.  In 
such  crises  of  the  body  politic,  the  heart  counts  for  more 
than  the  head ;  for  when  the  heart  beats  strongly,  the  brain 
will  leap  to  action. 


CHAPTER    IV 

THE  TERRITORIES  OF  THE  EMPIRE   (continued): 

THE    CROWN    COLONIES    AND 

BRITISH    INDIA 

Before  proceeding  to  consider  the  relationship  of  the 
"  Crown  colonies  "  to  the  Empire,  it  will  be  convenient  to 
say  a  few  words  about  the  Imperial  authority  by  which  they 
are  chiefly  governed,  viz.  the  Colonial  Office.  That  depart- 
ment is,  of  course,  also  concerned  with  the  self-governing 
Dominions  discussed  in  the  last  chapter ;  but  in  a  much  less 
degree,  because,  as  has  been  explained,  the  self-governing 
Dominions  manage  their  own  affairs  almost  completely. 

The  Colonial  Office 

For  some  time  after  the  first  acquisition  of  colonies  by  the 
English,  the  management  of  them,  so  far  as  the  mother- 
country  was  concerned,  was  left  entirely  in  the  hapds  of  the 
King.  The  King,  in  his  turn,  either  appointed  some  person 
to  reside  in  the  colony  and  act  in  his  name,  subject  to  render- 
ing an  account  of  his  actions  to  the  King,  or  the  King  made 
a  grant  of  the  colony,  subject  to  certain  provisions  and  reser- 
vations, to  a  company  or  individual  as  proprietor,  who 
dealt  with  the  colony  as  an  estate  to  be  "  settled  "  and  de- 
veloped. Examples  of  the  former  class  were  Barbados  and 
Jamaica,  of  the  latter,  Virginia  and  Pennsylvania. 

The  Privy  Council  and  the  Colonies 

But,  as  the  colonial  possessions  of  the  Crown  grew  in  ex- 
tent, questions  concerning  their  management  became  more 
and  more  frequent,  and  were  naturally  referred  by  the  King 


EARLY    COLONIAL    GOVERNMENT  69 

to  what  was,  in  the  first  half  of  the  seventeenth  century,  the 
seat  of  the  executive  government  of  England,  the  Privy  Coun- 
cil. This  body,  consisting  of  the  chief  officials  of  the  Crown, 
was  already  accustomed  to  deal  with  matters  affecting  the 
relations  of  England  with  other  countries,  and  had  even  some 
experience  of  governing  dependencies,  such  as  the  Channel 
Islands.  But  the  credit  of  first  creating  a  separate  depart- 
ment of  the  Council  for  this  purpose  belongs  to  the  Ministers 
of  Charles  I;  a  Commission  for  Foreign  Plantations  (really 
a  Committee  of  the  Council)  being  created  in  1634,  and  last- 
ing until  1641.  The  idea  was  revived  by  the  Protector 
Cromwell,  who,  in  the  year  1654,  created  a  Committee  of  the 
Council  of  State  (as  it  was  then  called)  for  Trade  and  Plan- 
tations, to  carry  out  the  policy  embodied  in  the  Navigation 
Acts.  At  the  Restoration,  in  1660,  a  Committee  of  the  Privy 
Council  or  Plantations  was  formed,  which  soon  became  a 
Commission,  and  was  in  the  year  1672  united  with  the  Council 
of  Trade,  another  branch  of  the  Privy  Council,  created,  as 
its  name  implies,  for  dealing  with  the  closely  connected  sub- 
ject of  external  trade.  This  united  body  suffered  temporary 
extinction  in  1675 ;  but,  in  the  year  1695,  King  William  con- 
stituted a  permanent  Board  of  Trade  and  Plantations,  which 
gradually  acquired  recognition  in  Acts  of  Parliament,  had 
various  powers  given  to  it,  and  in  the  year  1768  was  put 
under  the  management  of  a  newly  created  Secretary  of  State, 
a  high  official  of  whose  office  we  shall  later  speak  (p.  228). 

Loss  OF  THE  American  Colonies 

Unfortunately,  this  promising  development  received  a 
severe  check  by  the  separation  of  the  American  colonies  in 
the  year  1782 ;  and  before,  by  the  Peace  of  Versailles  in 
1783,  their  independence  was  formally  recognized,  the  new 
Secretary  of  State  and  the  Board  of  Trade  and  Plantations 
were  both  abolished,  as  though  Great  Britain  had  gone  out 
of  business  as  a  colonizing  Power.  Happily,  the  courageous 
government  of  Pitt  soon  reversed  this  faint-hearted  policy; 
and,  in  the  year  1784,  a  new  Committee  for  Trade  and  Plan- 


70  TERRITORIES    OF    THE    EMPIRE 

tations  was  created,  wliich,  in  the  year  1801,  was  put  under 
the  control  of  the  newly  created  Secretary  of  State  for  War. 
This  somewhat  strange  union  of  parts  lasted  until  the 
Crimean  War,  in  1854,  when  the  increasing  duties  of  the 
War  Office  led  to  the  creation  of  a  separate  Secretary  of 
State  for  War,  thus  leaving  the  affairs  of  the  colonies  exclu- 
sively to  the  "  Colonial  Office."  The  Secretary  of  State  for 
the  Colonies  is,  in  normal  times,  a  Cabinet  Minister  of  the 
highest  rank,  though  he  takes  precedence  after  the  older 
Secretaryships  for  Home  and  Foreign  Affairs  (p.  210).  He 
is  always  a  member  of  Parliament,  and  is  directly  responsible 
to  Parliament  for  the  conduct  of  his  office. 

What  is  a  Crown  Coi^ony.? 

(3)  By  a  "  Crown  colony  "  is  meant  an  overseas  posses- 
sion of  the  Crown  (other  than  British  India),  which  does 
not  enjoy  the  powers  of  "  self-government  "  described  in  the 
last  chapter,  or,  putting  the  matter  in  positive  form,  is  sub- 
ject to  the  control  of  the  Colonial  Office  ^  in  the  management 
of  its  daily  affairs.  Like  the  self-governing  Dominions,  each 
Crown  colony,  or  group  of  colonies,  is  placed  under  the  rule 
of  a  resident  Governor  or  Administrator  appointed  by  the 
Crown ;  but,  unlike  the  Governor  of  a  self-governing  Domin- 
ion, the  Governor  of  a  Crown  colony  is  a  real  ruler,  not 
bound  to  act  according  to  the  advice  of  his  local  officials, 
but,  subject  to  instructions  from  the  Colonial  Office,  exercis^ 
ing  his  own  discretion  in  performing  the  duties  of  his  office. 
The  chief  reason  for  this  important  distinction  between  the 
Dominions  and  Crown  colonies  is,  of  course,  that  the  latter 
have,  in  some  cases,  at  least,  been  acquired  by  conquest  from 
foreign  Powers,  and  are  in  the  main  inhabited  by  people  who 
have  not  the  deep-seated  instinct  of  the  Anglo-Saxon  for 
self-government,  nor  his  long  traditions  of  the  way  in  which 
to  exercise  it.  It  should,  however,  once  again  be  remembered, 
that,  even  in  the  case  of  Crown  colonies,  there  is  no  attempt, 

^  It  is  not  strictly  true  to  say  that  all  the  Crown  colonies  are  under  the 
Colonial  Office.     One  (Ascension  Island)  is  under  the  Admiralty. 


CROWN    COLONIES  71 

nor  ever  has  been,  to  make  them  sources  of  tribute  to  the 
Imperial  Government,  nor  even,  since  the  repeal  of  the  Navi- 
gation Acts  (p.  50),  which  aimed  at  keeping  control  of  the 
carrying  trade  of  the  Empire  in  the  hands  of  Great  Britain, 
has  there  been  any  attempt  to  subject  the  economic  interests 
of  the  colonies  to  those  of  the  United  Kingdom  or  any  other 
part  of  the  Empire.  On  the  other  hand,  though  the  aim  has 
always  been  to  make  each  colony  self-supporting,  i.e.  to 
defray  the  expenses  of  its  government  out  of  its  own  reve- 
nues, the  United  Kingdom  has,  in  times  past,  spent  large 
sums  of  money,  without  asking  for  any  share  in  the  profits, 
in  developing  the  resources  of  various  colonies  for  the  benefit 
of  those  colonies  themselves,  and  in  supplementing  deficits 
in  their  revenues. 

Institutions  of  Crown  Colonies 

It  would,  moreover,  be  a  great  mistake  to  suppose  that, 
because  the  Crown  colonies  do  not  enjoy  the  full  powers  of 
self-government,  they  are  all  placed  under  simple  autocratic 
government.  For  one  thing,  the  inhabitants  of  a  conquered 
or  ceded  colony  have  usually  been  allowed  to  retain  their  own 
system  of  law  for  the  regulation  of  their  private  affairs ;  al- 
though until  the  grant  to  them  of  representative  institu- 
tions, the  Crown  claims  the  right  of  altering  this,  if  it  sees 
fit,  by  Order  in  Council.  But,  apart  from  this,  a  large  num- 
ber, even  of  the  Crown  colonies,  have  been  given  Constitutions 
which  enable  them  to  exercise  a  considerable  control  over 
their  own  affairs.  There  are,  in  fact,  three  well-marked  types 
of  government  in  the  Crown  colonies ;  and  only  one  of  these 
can  fairly  be  called  a  purely  autocratic  or  absolute  form  of 
government. 

Representative  Councils 

In  the  highest  type  of  Crown  colony,  there  is  a  represent- 
ative legislature  consisting  of  one  or  two  chambers ;  though 
this  legislature  is  not  entitled  to  the  name  of  Parliament. 
Thus,  in  the  Bahama  Islands,  the  Bermudas,  and  Barbados, 


72  TERRITORIES    OF    THE    EMPIRE 

there  is  a  Legislative  Council  nominated  by  the  Crown,  but 
wholly  or  mainly  selected  from  the  non-official  inhabitants, 
and  a  wholly  elective  Legislative  Assembly.  In  eight  other 
colonies,  there  is  a  legislature  which  combines  the  character 
of  a  nominated  and  an  elected  body;  some  of  its  members 
being  nominated  by  the  Crown,  and  others  elected  by  the  in- 
habitants. These  are  the  colonies  of  British  Guiana,  Ja- 
maica, the  Leeward  Islands,  Malta,  Mauritius,  Ceylon, 
Cyprus,  and  Fiji.  These  legislatures  have  not,  as  has  been 
hinted,  the  full  powers  of  a  Parliament,  particularly  as  re- 
spects criticism  of  the  colonial  government;  but  they  can 
put  up  a  strong  opposition  to  "  Government  measures,"  and 
they  have  almost  complete  control  of  local  expenditure,  sub- 
ject to  the  important  and  universal  rule,  that  no  taxation 
can  be  imposed  by  them  except  on  the  proposal  of  the 
Crown's  representative.  Moreover,  as  was  mentioned  in  an 
earlier  chapter  (p.  17),  the  power  of  the  Crown  to  legislate 
for  such  colonies  by  Order  in  Council  disappears  on  the 
grant  of  representative  institutions,  except  where  it  is  ex- 
pressly reserved  by  such  grant.  It  may,  moreover,  be  men- 
tioned, that  a  grant  of  representative  institutions  of  the 
Crown  colony  type  does  not  require  an  Act  of  the  Imperial 
Parliament,  but  may  be,  and  often  is,  made  by  the  Crown  by 
Letters  Patent. 

Executive  Council,s 

In  the  Crown  colonies,  there  is  usually  also  an  Executive 
Council,  consisting  of  high  officials  directly  appointed  by  the 
Crown,  with,  in  some  cases,  nominated  unofficial  members, 
being  inhabitants  appointed  by  the  Governor  with  the  ap- 
proval of  the  Colonial  Office.  The  relations  of  the  Governor 
with  his  Executive  Council  are  settled  by  the  Governor's  In- 
structions, which  generally  give  him  power  to  override  the 
views  of  its  members  where  they  differ  from  his  own.  But 
the  facts  that  the  members  of  the  Council  do  not  owe  their 
appointments  to  him,  and  are  often  persons  of  greater  local 
experience  than  his  own,  naturally  exercise  a  restraining  in- 


CONSTITUTIONS    OF    CROWN    COLONIES     73 

fluence  upon  his  action.  It  should  be  mentioned  also  that,  in 
the  Crown  colonies  where  there  are  not  garrisons  of  "  regu- 
lar "  troops  (p.  175),  the  Governor  is  usually,  and  not 
merely  in  name  (as  in  the  self-governing  Dominions),  the 
Commander-in-Chief  of  the  local  forces,  but  that  the  action  of 
the  executive  is  kept  within  legal  bounds  by  the  existence  of 
courts  of  justice  presided  over  by  judges  directly  appointed 
by  the  Imperial  Government,  and  incapable  of  being  dis- 
missed or  affected  in  their  salaries  by  the  Governor  who,  as 
has  been  explained  (p.  63),  is  answerable  for  breaches  of  the 
law  to  them,  as  well  as  to  the  English  courts. 

Nominated  Legislatures 

The  second  type  of  Crown  colony  also  has  a  local  legisla- 
ture; but  it  consists  entirely  of  Crown  nominees.  It  is  there- 
fore spoken  of  only  as  a  "  Council  " ;  and  its  only  claim  to 
represent  local  feeling  is  that  some  of  its  members  (usually 
a  minority)  are  chosen  by  the  Crown  from  among  the  non- 
official  inhabitants  of  the  colony,  the  remainder  being  Crown 
officials.  Often,  however,  it  cannot  introduce  proposals  for 
legislation;  and  even  its  financial  powers  are  strictly  limited. 
Moreover,  where  the  legislature  consists  of  nominees,  the 
Crown  can  continue  to  legislate  for  the  colony  by  Orders  in 
Council  sent  out  from  England.  Obviously,  in  such  colonies, 
the  personal  authority  wielded  by  the  Governor  is  very  great, 
being  checked  only  by  the  advice  of  his  Executive  Council, 
and  by  the  independent  action  of  the  judges  of  the  courts,  all 
of  whom,  it  will  be  remembered,  are  appointed  by  the  Crown 
on  the  recommendation  of  the  Secretary  of  State,  and  are 
not  removable  by  the  Governor.  But  it  should  also  be  borne 
in  mind,  that  a  Governor  of  this  type  is  in  constant  corre- 
spondence with  the  Colonial  Office,  that  his  proceedings  are 
all  carefully  recorded,  and  that  he  naturally  endeavours, 
by  discreet  and  kindly  behaviour,  to  earn  a  good  reputation 
which  will  help  him  to  promotion  to  a  more  important  and 
dignified  sphere  of  work.  The  colonies  under  this  type  of 
government   are  many  in  number,  including  Trinidad   and 


74  TERRITORIES    OF    THE    EMPIRE 

Tobago,  Grenada,  The  Gold  Coast,  Sierra  Leone,  and  Brit- 
ish Honduras.  The  former  colony  of  British  New  Guinea, 
now  known  as  Papua,  was  once  in  this  list ;  but  it  now  occu- 
pies a  peculiar  and  interesting  position,  being  placed  under 
the  control  of  the  Federal  Government  of  Australia.  This  is 
an  important  experiment,  the  working  of  which  will  be 
watched  with  great  interest  by  all  students  of  politics. 

Autocratically  governed  Colonies 

It  is  only  in  the  third  and  lowest  group  of  Crown  colonies 
that  the  purely  autocratic  rule  of  a  Governor  or  Administra- 
tor is,  for  military  reasons,  maintained.  They  are  few  in 
number,  but  include  the  important  naval  stations  of  Gib- 
raltar and  St.  Helena,  Basutoland  (which  is  administered 
by  a  Commissioner  acting  under  the  orders  of  the  High  Com- 
missioner for  South  Africa  as  Governor),  Ashanti,  governed 
by  a  Chief  Commissioner  appointed  by  the  Governor  of  the 
Gold  Coast,  Ascension  Island  (administered  by  the  Admi- 
ralty), Aden  and  Perim,  under  the  control  of  the  Governor  of 
Bombay,  and  Wei-Hai-Wei,  which  is,  strictly  speaking, 
only  leased  to  the  British  Empire.  The  North-West  Terri- 
tories of  Canada  may  also  be  said  to  be  of  this  type ;  but, 
like  British  New  Guinea  (though  in  a  less  advanced  stage) 
they  are  not  under  the  control  of  the  Colonial  Office,  but  of 
the  Federal  Government  of  a  self-governing  Dominion,  viz. 
Canada.  Where  colonies  of  this  rank  are  under  the  control 
of  the  Colonial  Office,  the  Crown  can  legislate  for  them  by 
Order  in  Council. 

(4)  We  now  come  to  the  last  group  of  the  communities 
which  compose  the  British  Empire,  viz.  the  provinces  of 
British  India. 

British  India 

As  is  well  known,  the  interest  of  the  English  in  India  was 
for  long  of  a  purely  commercial  character,  directed  by  joint- 
stock  companies  of  an  old-fashioned  type,  which,  at  the  be- 
ginning of  the  eighteenth  century,  became  definitely  united 


BRITISH    INDIA  75 

into  the  United  Company  of  Merchants  Trading  to  the  East 
Indies,  commonly  known  as  "  The  East  India  Company." 

The  East  India  Company 

This  company,  though  not,  for  a  long  time,  under  the 
direct  control  of  the  Crown,  became,  in  the  eighteenth  cen- 
tury, mixed  up  with  Government  loans,  for  which  it  under- 
took responsibility,  in  return  for  a  grant  or  recognition  of 
its  monopoly  of  the  trade  to  India ;  though  the  validity  of 
the  Crown's  claim  to  grant  such  monopoly  was  more  than 
doubtful.  Partly  to  protect  its  traders  and  their  rich 
"  forts  "  or  settlements  on  the  coast  (Calcutta,  Madras,  and 
Bombay)  from  attacks  by  the  native  princes,  partly  to  en- 
able its  members  to  hold  their  own  against  the  efforts  of 
other  European  traders  (French,  Dutch,  and  Portuguese), 
The  East  India  Company  was  allowed  to  raise  and  maintain 
a  considerable  army,  the  control  of  which  was  entirely  in 
its  own  hands.  Very  naturally,  the  Company  was  drawn  into 
the  constant  rivalries  and  quarrels  of  the  native  rulers,  some 
of  whom  were  shrewd  enough  to  sec  the  advantage  of  enlist- 
ing its  valuable  aid  on  their  side.  In  the  year  1765,  the  Com- 
pany became,  in  effect,  a  great  territorial  power  by  the 
grant,  from  the  Great  Mogul,  of  the  Diwani,  or  right  of  col- 
lecting taxes  nominally  due  to  that  feeble  ruler,  and  of  ad- 
ministering justice,  in  Bengal,  including  Bihar  and  Orissa. 

Beginning  op  Crown  Government  in  India 

Hitherto  the  direct  action  of  the  Crown  in  India  had  been 
confined  to  the  establishment  of  courts  of  justice  for  the 
British  settlers,  a  personal  rather  than  a  territorial  exer- 
cise of  authority ;  but  the  acquisition  of  the  Diwani  was 
quickly  followed  by  a  period  in  which  the  Crown,  though  still 
declining  to  undertake  direct  government  in  India,  acted  as 
a  controlling  and  inspecting  authority  over  the  Company's 
administration.  This  was  done,  first,  under  the  provisions 
of  Lord  North's  "  Regulating  Act  "  of  1773,  which  estab- 


76  TERRITORIES    OF    THE    EMPIRE 

lished  a  Governor-General  at  Calcutta,  in  control  of  the 
three  former  "  Presidencies  "  of  Calcutta,  Madras,  and  Bom- 
bay, with  a  Council  to  advise  him,  not  only  in  executive  but 
in  legislative  matters,  and  a  Supreme  Court  at  Calcutta,  ex- 
ercising jurisdiction  over  British  subjects,  and,  in  some  cases, 
natives ;  while  the  Court  of  Directors  of  the  Company  was 
made  to  report  on  financial  and  other  matters  to  The  Treas- 
ury and  the  Secretary  of  State. 

The  Board  of  Control 

The  scheme  of  1773  was  soon  superseded  by  a  scheme  in- 
troduced by  Pitt  in  1784,  which  established  a  regular 
"  Board  of  Control  "  in  London,  consisting  of  the  Chancellor 
of  the  Exchequer,  a  Secretary  of  State,  and  four  other  Privy 
Councillors,  of  whom  one  became  "  President  of  the  Board 
of  Control,"  and,  virtually.  Minister  for  India.  Under  this 
scheme,  the  powers  of  the  Court  of  Proprietors  or  share- 
holders in  the  Company  were  greatly  reduced,  while  those  of 
the  Court  of  Directors  and  the  Company's  officials  in  India 
were  placed  under  the  close  supervision  of  the  Board  of  Con- 
trol and  the  Governor-General  respectively.  The  Company 
was,  in  fact,  rapidly  losing  its  commercial  character,  as  the 
actual  conduct  of  trade  passed  into  private  hands,  and  as 
rapidly  acquiring  the  character  of  a  government  department 
with  vast  responsibilities  and  machinery.  In  the  year  1813, 
it  was  deprived  of  its  trade  monopoly  (except  as  to  the  tea 
trade  with  China),  though  merchants  still  required  its  license 
to  trade  in  India.  Its  charter  was  renewed  in  1833;  but  the 
great  territorial  possessions  which,  by  that  time,  the  Com- 
pany had  acquired,  were  definitely  declared  by  it  to  be  held 
in  trust  for  the  Crown ;  and  its  commercial  monopoly  and  con- 
trol over  private  traders  were  abolished.  On  the  renewal  of 
the  Company's  Charter  in  1853,  the  Crown  encroached  fur- 
ther on  the  independence  and  influence  of  the  Company,  by 
bringing  the  enormous  official  patronage  it  had  hitherto  exer- 
cised, under  Regulations  of  the  Board  of  Control;  and  the 
final  step  was  taken  when,  after  the  suppression  of  the  native 


BRITISH    INDIA  77 

risings  known  as  the  "  Mutiny,"  a  great  Act  of  Parliament 
of  the  year  1858  definitely  brought  the  Company's  territories 
within  the  dominions  of  the  Crown,  and  set  up  a  scheme  of 
government  for  British  India,  which,  with  some  important 
modifications,  is  in  force  at  the  present  day.  Of  this  scheme 
we  must  now  proceed  to  give  a  brief  account.^ 

The  Modern  System 

By  the  Government  of  India  Act  of  1858,  the  whole  of  the 
territories  formerly  under  the  control  of  the  East  India  Com- 
pany were  vested  in  the  Crown ;  and  all  the  powers  and  lia- 
bilities, by  treaty  or  contract,  of  The  East  India  Company, 
as  well  as  of  the  old  "  Board  of  Control,"  passed  to  a  newly 
created  Secretary  of  State  for  India,  who  is  the  constitutional 
adviser  of  the  Crown  in  all  matters  of  Indian  government,  is 
always  a  member  of  the  Ministry  of  the  day,  and  acts  as  the 
head  of  the  India  OflSce. 

Council  of  India 

To  assist  him  in  his  arduous  and  responsible  duties,  was 
created  the  Council  of  India,  consisting  of  from  ten  to  four- 
teen salaried  members,  who  are  appointed  by  the  Secretary 
of  State,  but  cannot  be  dismissed  by  him,  thus  being  assured 
independence.  They  may  not  sit  in  Parliament,  and  are  re- 
movable on  an  Address  by  both  Houses.  Of  the  members  of 
this  Council,  which  holds  frequent  sittings  in  London,  nine 
must  have  served  the  Crown,  or  at  least  resided,  in  British 
India,  for  a  period  of  at  least  ten  years,  terminating  within 
the  last  five  before  their  appointment.  As  a  matter  of  fact, 
substantially  all  members  of  the  Council  are  ex-Indian  oflH- 
cials  of  recent  experience.  They  hold  office  normally  for 
seven  years,  which  may  be  extended  to  twelve  by  Minute  of 
the  Secretary  of  State  laid  before  Parliament.  The  sittings 
of  the  Council  are  usually  presided  over  by  the  Secretary  of 
State,  who  has  an  ordinary,  as  well  as  a  casting  vote. 

^  The  government  machinery  for  India  has  recently  been  re-enacted  by  the 
Government  of  India  Act  of  1915. 


78  TERRITORIES    OF    THE    EMPIRE 

Powers  of  the  Secretary  of  State 

The  Secretary  of  State  is  expected  to  consult  his  Council 
in  all  matters  of  importance,  and,  as  a  general  rule,  to  follow 
its  advice.  But,  where  he  disagrees  with  its  opinion,  he  is  at 
liberty,  except  in  cases  where  a  majority  of  votes  is  expressly 
required,  to  disregard  it,  in  view  of  his  ultimate  responsibility 
to  Parliament;  though,  when  he  does  so,  he  is  expected  to 
record  his  reasons,  and  any  member  of  the  Council  may  record 
his  own  reasons  for  the  advice  which  he  gives.  All  orders  of 
the  Council,  moreover,  go  out  in  the  name  of  the  Secretary  of 
State ;  communications  to  and  from  the  Viceroy  are  addressed 
by  and  to  him ;  he  may,  if  he  pleases,  withhold  urgent  and 
secret  despatches  from  the  Council ;  and  all  acts  of  the  Coun- 
cil done  in  his  absence  require  his  approval  in  writing. 

Government  in  India 

But,  of  course,  even  in  these  days  of  rapid  travelling  and 
despatches,  it  would  be  impossible,  as  well  as  highly  undesir- 
able, to  attempt  to  rule  a  vast  country  like  India  from  Lon- 
don, thousands  of  miles  away ;  and,  in  fact,  most  of  the 
responsibility  for  that  difficult  and  laborious  duty  falls  upon 
the  representatives  of  the  Crown  in  India  itself,  viz.  the  Vice- 
roy, Governors,  Lieutenant-Governors,  and  other  adminis- 
trative heads,  and  their  Councils,  and  on  the  various  ranks 
of  that  invaluable  body  of  officials,  the  Indian  Civil  Service. 

The  Governor-General 

The  Viceroy,  or  Governor-General,  the  supreme  represent- 
ative of  the  Crown  in  India,  was  formerly  connected  in  a 
special  way  with  the  province  of  Bengal,  having  his  head- 
quarters at  Calcutta,  its  capital,  the  premier  of  the  old  three 
"  Presidencies."  But  at  the  commencement  of  the  present 
reign,  by  a  significant  act  of  State,  the  Viceroy's  seat  was 
transferred  to  Delhi,  the  capital  of  the  ancient  empire  of  the 
Moguls,  which  occupies  a  central  position  in  Northern  India. 


GOVERNMENT    IN    INDIA  79 

There,  and  at  Simla,  the  Viceroy  holds  his  court,  which  is 
the  centre  of  British  power,  civil  and  military,  in  India ;  and 
he  is  the  supreme  head  both  of  the  military  and  the  civil 
forces,  throughout  the  territories  of  British  India.  The 
Viceroy  is  appointed  directly  by  the  Crown,  on  the  advice 
of  the  Cabinet  as  a  whole,  and  usually  holds  office  for  five 
years. 

Governor-General  in  Council 

To  assist  him  in  his  countless  duties,  the  Viceroy  is  pro- 
vided with  an  Executive  Council,  consisting  of  five  or  six 
high  oflicials,  of  whom  three,  at  least,  must  have  been  in  the 
service  of  the  Crown  in  India  for  at  least  ten  years,  and  one 
(the  "  Legal  Member")  must  be  a  barrister  or  advocate  of 
at  least  five  years'  standing.  If  a  military  officer  is  ap- 
pointed a  member  of  this  Council,  he  cannot  hold  any  mili- 
tary command  in  India  during  his  membership ;  but  there 
would  appear  to  be  no  legal  objection  to  giving  military 
command  to  a  member  of  the  Council  not  in  the  military 
service  of  the  Crown  when  he  became  a  member.  Moreover, 
the  Commander-in-Chief  of  the  Forces  in  India  may  be  ap- 
pointed by  the  Secretary  of  State  in  Council  an  extraordinary 
member  of  the  Viceroy's  Executive  Council ;  and  the  Gover- 
nor of  the  province  in  which  the  Executive  Council  meets  is, 
ex  officio,  an  extraordinary  member.  The  ordinary  members 
of  this  Council  are  appointed,  not  by  the  Viceroy,  but  by 
the  Secretary  of  State,  and  by  custom  hold  oflSce,  like  the 
Viceroy,  for  five  years ;  and,  though  the  Viceroy  may,  on  his 
own  responsibility,  adopt  or  reject  any  measure  whereby,  in 
his  judgment,  the  "  safety,  tranquillity,  or  interests  of  Brit- 
ish India,  or  any  part  thereof,  are,  or  may  be  .  .  .  essen- 
tially affected,"  yet  the  control  and  direction  of  the  general 
affairs  of  British  India  are,  in  the  ordinary  way,  in  the  hands, 
not  of  the  Viceroy  alone,  but  of  the  "  Governor-General  of 
India  in  Council,"  i.e.  the  Viceroy  and  his  Executive  Council. 


80  TERRITORIES    OF    THE    EMPIRE 

The  Legislative  Council 

For  more  than  half  a  century,  there  has  also  been,  in 
and  for  British  India,  a  Legislative  Council,  which,  as  its 
name  implies,  is  concerned  with  the  discussion  and  passing  of 
laws ;  but,  until  recently,  the  Legislative  Council  consisted 
merely  of  the  members  of  the  Viceroy's  Executive  Council, 
with  the  addition  of  a  few  other  members  nominated  by  the 
Viceroy.  The  number  of  these  additional  members  was  from 
time  to  time  increased ;  and  the  proportion  of  nominations  of 
unofficial  persons,  European  and  native,  was  gradually  en- 
larged. But  a  most  important  step  was  taken  in  the  year 
1909,  when  an  Imperial  Act  of  Parliament  was  passed  to 
enable  the  Governor-General  in  Council  to  make  Rules  (to 
be  laid  before  Parliament)  by  virtue  of  which  elected  repre- 
sentatives of  India  may  be  sent  to  the  Legislative  Council, 
which  may  now  include  as  many  as  sixty  members,  of  whom 
not  more  than  a  half  may  be  Crown  officials.  Moreover,  in 
accordance  with  the  rule  of  the  British  House  of  Commons, 
any  member  of  the  Legislative  Council  accepting  Crown 
office  thereby  vactes  his  seat.  These  provisions  have  been 
fully  acted  upon;  and  the  Viceroy's  Legislative  Council  now 
consists  of  sixty  members,  exclusive  of  the  members  of  the 
Executive.  Of  these,  twenty-seven  are  elected  by  various  dis- 
tricts and  bodies  representing  important  interests ;  whilst 
there  are  twenty-eight  official,  and  five  non-official,  nominee 
members.  Under  these  provisions,  the  Legislative  Council  of 
India  bids  fair  to  become,  like  the  British  Parliament,  a  real 
exponent  of  public  opinion :  But  it  must  be  carefully  remem- 
bered that  it  is  not,  like  the  British  Parliament,  an  adminis- 
trative, but  a  purely  legislative  body,  i.e.  its  powers  are  lim- 
ited strictly  to  the  proposal  and  discussion  of  legislative 
measures ;  and,  even  of  these,  none  affecting  certain  vital 
objects  (such  as  revenue,  religion,  discipline  or  maintenance 
of  the  army,  or  foreign  relations)  can  be  introduced  without 
the  previous  sanction  of  the  Viceroy,  who  may,  however,  with 
the  approval  of  the  Secretary  of  State  and  Parliament,  issue 


GOVERNMENT    IN    INDIA  81 

Rules  for  the  discussion  in  the  Legislative  Council  of  the  Gov- 
ernment financial  statement,  and  other  matters  of  public 
interest. 

Acts  of  the  Governor-General's  Legislative  Council 

The  laws  passed  by  the  Legislative  Council  are  binding 
throughout  the  whole  of  British  India,  and  may  be  binding 
on  British  subjects  and  officials  even  in  the  feudatory  states 
(p.  88),  as  well  as  on  Indian  subjects  of  the  Crown  anywhere; 
but  they  require,  of  course,  the  assent  of  the  Crown,  which  is 
given  or  withheld  by  the  Viceroy  or  Secretary  of  State  in 
manner  explained  in  describing  the  legislation  of  Dominion 
governments  (p.  65).  Needless  to  say,  moreover,  that  if  they 
conflict  with  any  Act  of  the  Imperial  Parliament  extending  to 
British  India,  they  are  so  far  void;  while  their  scope  is  lim- 
ited by  the  exceptional  power  conferred  on  the  Viceroy,  on 
occasions  of  emergency,  of  issuing  Ordinances,  valid  for  six 
months,  subject  to  disallowance  by  the  Crown,  on  the  advice 
of  his  Executive  Council  alone. 

The  Indian  Civil  Service 

As  has  been  hinted  above,  the  main  burden  of  the  daily 
government  of  British  India  rests  upon  the  shoulders  of  the 
Covenanted  Civil  Service,  a  body  of  men  recruited  by  strictly 
competitive  examination  from  the  most  highly  educated 
young  men  of  the  United  Kingdom  and  India  itself,  who 
devote  the  best  years  of  their  lives  to  the  service  of  India, 
and  who  may  rise  to  the  responsible  duty  of  governing  huge 
provinces,  or  of  acting  as  the  heads  of  departments  of  State 
at  headquarters,  or  even  of  serving  on  the  Councils  of  the 
Viceroy  or  the  Secretary  of  State.  There  are  no  rigid  rules 
of  promotion,  which  goes  partly  by  seniority,  but.  In  the 
higher  ranks,  by  merit,  as  observed  by  superiors,  especially 
by  the  Provincial  Governors  and  Administrators,  in  whose 
hands,  and  In  those  of  the  Viceroy,  lies  the  responsibility  of 
patronage  within  the  service.     Needless  to  say,  the  duties  of 


82  TERRITORIES    OF    THE    EMPIRE 

those  who  carry  on  the  government  of  India  are  not  confined 
to  the  elementary  tasks  of  defending  the  country  against 
foreign  attack,  and  maintaining  order,  or  even  of  dispensing 
justice  in  the  ordinary  sense  of  the  term.  It  is  true  that  this 
latter  task  is  of  supreme  importance  in  a  country  like  India, 
which  suffered  for  ages  from  corruption  and  oppression ;  and 
there  is  a  highly  organized  and  admirable  judicial  service  in 
British  India  (p.  281),  the  higher  posts  in  which  are  filled 
by  persons  directly  appointed  by  the  Secretary  of  State  from 
the  ranks  of  advocates  in  the  United  Kingdom  or  India  itself, 
or  from  Indian  officials  of  judicial  experience,  from  whose 
decisions  there  lies  an  appeal  to  the  supreme  tribunal  of  the 
Empire,  tlic  Judicial  Committee  of  the  Privy  Council,  which 
sits  in  London  (p.  269).  But,  beyond  these  tasks,  the  Civil 
Servants  of  India  are  concerned  with  developing  the  resources 
of  the  country,  its  mines,  forests,  and  rivers,  with  averting 
drought  and  famine  by  the  extension  of  the  water-supply, 
with  facilitating  intercourse  by  means  of  railways,  with  re- 
lieving distress  caused  by  famines  and  catastrophes  which 
cannot  be  averted,  and  with  providing  education  for  the  teem- 
ing millions  of  India.  In  these  many  tasks,  they  naturally 
call  in,  if  occasion  requires  it,  the  temporary  assistance  of  the 
outside  expert ;  and  they  are  assisted  in  the  clerical  and  sub- 
ordinate parts  of  their  work  by  a  Provincial  or  Uncovenanted 
Civil  Service,  recruited  almost  entirely  from  the  natives  of 
India.  But  the  burden  and  responsibility  rest  chiefly,  it  must 
again  be  said,  on  the  members  of  the  Covenanted  Civil  Service, 
whose  services  have  done  so  much  to  render  British  rule  in 
India  not  merely  possible,  but  respected  and  trusted. 

It  would  be  wrong,  however,  to  allow  the  reader  to  carry 
away  the  impression  that  the  government  of  India,  even  in 
India  itself,  is  centralized  in  the  court  of  the  Viceroy  at 
Delhi  or  Simla.  India  is  not  a  country  of  one  nation,  but 
of  many  nations ;  and  the  old  racial  and  political  divisions, 
which  existed  before  the  country  came  under  British  rule, 
have  not  been  obliterated.  These  divisions  are  known  gen- 
erally as  "  provinces  " ;  but,  in  fact,  they  are  of  different 


GOVERNMENT    IN    INDIA  83 

degrees  of  importance  and  civilization,  and  have  different 
forms  of  government  under  the  supervision  of  the  Viceroy. 

The  Provinces  of  India 

The  oldest  and  most  important  are  the  three  original 
"  Presidencies,"  now  the  provinces  of  Madras,  Bombay,  and 
Bengal.  Each  of  these  has  a  Governor  directly  appointed 
by  the  Crown,  with  an  Executive  Council  not  exceeding  four 
members  appointed  by  the  Secretary  of  State  from  officials 
of  long  experience  in  India,  and  the  Commander-in-Chief,  if 
resident  in  the  province,  as  well  as  a  Legislative  Council  not 
exceeding  fifty  members,^  appointed  or  elected  on  lines  simi- 
lar to  those  which  govern  the  Legislative  Council  of  the 
Viceroy  above  described  (pp.  80,  81).  But  it  is  the  duty 
of  the  provincial  authorities  to  obey  the  orders  of  the  Vice- 
roy, and  to  keep  him  constantly  informed  of  what  is  going 
on.  And  the  legislation  of  the  provincial  Legislative  Coun- 
cils, which  is,  of  course,  only  binding  within  the  limits  of 
their  own  provinces,  requires  the  assent  of  the  Viceroy  as 
well  as  of  the  Governor  of  the  province ;  and  it  is  void  if  it  is 
inconsistent,  not  only  with  Imperial  Acts  of  Parliament,  but 
also  if  it  conflicts  with  the  Acts  and  Ordinances  of  the  Vice- 
roy.    And  it  can  be  set  aside  by  his  legislation. 

The  provinces  of  Bihar  and  Orissa,  Agra  and  Oudh,  the 
Panjab,  and  Burma  are  under  Lieutenant-Governors,  who 
are  appointed,  not  by  the  Secretary  of  State,  but  by  the  Vice- 
roy with  his  approval;  the  Viceroy  also,  with  the  like  ap- 
proval, fixes  the  scope  of  their  duties.  They  are,  like  the 
Viceroy  and  the  Governors,  assisted  in  the  discharge  of  their 
offices  by  Legislative  and  (in  one  case,  at  least)  Executive 
Councils ;  and  the  members  of  the  former,  in  number  varying 
from  fifty  to  thirty,  may  be  nominated  or  elected  under  Regu- 
lations of  the  Governor-General  in  Council,  while  at  least  one- 
third  must  be  non-official.^ 

1  The  present  figures  appear  to  be:  Madras,  39  (21  elected,  12  oflScial,  and 
6  non-oflScial  nominees);  Bombay,  40  (19  elected,  21  nominees);  and  Bengal, 
48  (28  elected,  12  oflacial,  and  8  non-official  nominees). 

^  The  present  figures  appear  to  be:  Bihar  and  Orissa,  39  (21  elected,  14 


84  TERRITORIES    OF    THE    EMPIRE 

The  provinces  of  Assam,  the  Central  Provinces,  the  North- 
West  Frontier  Province,  Biluchistan,  Delhi,  Ajmer-Merwara, 
Coorg,  the  Andaman  and  Nicobar  Islands,  and  others,  are 
under  the  administration  of  Chief  Commissioners,  also  ap- 
pointed by  the  Viceroy ;  and  new  provinces  of  their  type  may 
be  created  from  time  to  time  by  the  Governor-General  in 
Council,  with  Legislative  Councils  of  not  more  than  thirty 
members,  nominated  or  representative.  As  a  matter  of  fact, 
at  present  only  the  Legislative  Councils  of  Assam  and  the 
Central  Provinces  have  elected  members.^  In  these  provinces^ 
again,  it  is  the  duty  of  the  Commissioner  to  keep  the  Viceroy 
thoroughly  informed  of  the  progress  of  affairs,  to  obey  his 
instructions,  and,  generally,  to  carry  out  his  policy.  For, 
it  must  be  carefully  remembered,  the  Government  of  India 
is  not,  like  the  Government  of  Canada  or  Australia,  a  federal 
Government,  but  a  single  government  which,  as  a  matter  of 
convenience,  entrusts  large  powers  to  local  authorities,  but 
which  reserves  the  right  to  overrule  those  authorities  when  it 
sees  fit  to  do  so. 

Principles  of  British  Indian  Government 

Before  leaving  the  subject  of  British  India,  it  may  be  well 
to  call  attention  to  three  rules  affecting  the  government  of 
that  dependency,  which  are  of  the  first  importance  for  the 
welfare  of  the  Indian  peoples,  and  which  have  been  laid  down 
by  Parliament  for  the  guidance  of  those  to  whom  the  govern- 
ment of  India  is  entrusted. 

Finance 

The  first  relates  to  the  subject  of  Indian  finance.  For  cen- 
turies before  the  establishment  of  British  rule  in  India,  the 
native  populations  had  been  ground  under  the  heel  of  mili- 

oflScial,  and  4  non-official  nominees) ;  Agra  and  Oudh,  45  (of  whom  28  appear 
to  be  natives  of  India);  the  Panjab,  28  (11  elected,  10  oflBcial,  and  7  non-ofl5- 
cial  nominees);  Burma,  16  (9  non-official,  7  official). 

*  The  present  figures  appear  to  be:  Assam,  24  (13  natives  of  India);  Central 
Provinces.  22  (9  elected,  10  official  and  3  non-official  nominees). 


GOVERNMENT    IN    INDIA  85 

tary  despotisms,  which  wrung  from  them  every  penny  of  their 
hard-earned  savings,  and  stifled  all  industrial  and  commercial 
enterprise  by  plundering  all  who  showed  the  least  signs  of 
prosperity.  The  unbending  rule  of  British  administration 
is,  that  the  revenues  of  British  India  are  to  be  applied  for 
the  government  of  India  alone,  that  no  expenditure  is  to  be 
incurred,  even  for  that  purpose,  without  the  approval  of  the 
Council  of  India  (pp.  77,  78),  and  that  the  accounts  of  all 
expenditure,  duly  audited  by  an  official  who  holds  his  post, 
like  the  judges,  without  fear  of  arbitrary  dismissal,  shall 
be  laid  before  the  Imperial  Parliament  every  year.  It  is  to 
be  feared  that  the  "  Indian  Budget,"  as  these  accounts  are 
called,  does  not  excite  as  much  interest  as  it  should  in  the 
British  House  of  Commons ;  for  the  firm  belief  which  pre- 
vails, in  the  upright  and  wise  administration  of  the  Gov- 
ernment of  India,  renders  British  members  of  Parliament 
unwilling  to  spare  the  time  and  labour  necessary  for  the 
study  of  a  difficult  and  complicated  subject.  But,  if  the 
slightest  suspicion  of  illegal  practices  arose,  there  are  many 
members  of  the  House  of  Commons  who  would  spare  no  pains 
to  drag  the  facts  to  light,  and  exact  reparation ;  while  recent 
events  have  shown  that  the  Secretary  of  State  for  India  is 
responsible  in  a  very  real  sense  for  the  efficient  conduct  of  the 
affairs  of  India. 

Responsibility  of  Officials 

A  second  most  important  rule  is,  that  Crown  officials  in 
British  India  are  responsible,  like  Crown  officials  throughout 
the  rest  of  the  Empire,  both  criminally  and  civilly,  for  their 
acts  done  both  in  the  conduct  of  their  official  duties  and  in 
their  private  capacity.  It  is  true  that  the  Viceroy,  the  Gov- 
ernors, and  the  members  of  Executive  Councils,  are  not  sub- 
ject to  the  original  jurisdiction  of  any  Indian  High  Court 
for  any  act  done  in  their  public  capacity  only ;  nor  are  they, 
nor  any  members  of  such  High  Courts,  liable  to  be  arrested 
or  imprisoned  in  any  proceeding  in  such  High  Courts,  nor 
are  they  liable  to  any  original  criminal  jurisdiction  of  such 


86  TERRITORIES    OF    THE    EMPIRE 

High  Courts,  except  for  treason  or  felony.  Moreover,  any 
High  Court  must  accept  as  justified  any  act  done 
under  written  orders  of  the  Governor-General  in  Council 
(pp.  T^j  80),  except  as  regards  European  British  subjects. 
But,  subject  to  these  necessary  exceptions,  £iny  official  com- 
mitting any  offence  against  any  person  under  his  authority 
is  liable  to  prosecution  in  the  Indian  High  Courts,  as  well 
as  in  the  English  High  Court  after  his  return  to  Great  Brit- 
ain ;  while  there  is  a  special  list  of  misdemeanours  which 
cover  all  derelictions  of  duty  by  officials.^  No  Government 
which  was  not  firmly  determined  to  rest  its  authority  on 
justice  and  uprightness  could  possibly  recognize  such  a  rule 
in  a  country  like  India,  where  personal  authority  is  the  chief 
guarantee  of  the  safety  of  the  State.  It  may  well  be  doubted 
whether  the  Indian  peasant  realizes  the  nature  of  the  power- 
ful protection  which  this  important  rule  throws  over  him ; 
but  he  cannot  fail  to  realize,  in  a  dim  way,  that  the  Power 
which  controls  his  life  is  as  just  as  it  is  strong,  and  that  cor- 
ruption and  oppression  are  not  features  of  the  British  Raj. 

Employment  of  Indian  Army 

Thirdly,  it  is  carefully  provided  by  the  Government  of 
India  Act  that,  while  it  is  necessary  for  the  tranquillity  and 
defence  of  India  that  a  standing  army  should  be  maintained 
out  of  her  revenues,  this  army  shall  be  used  neither  to  gratify 
the  ambition  of  an  enterprising  Viceroy,  nor  to  enable  the 
Imperial  Government  to  gamble  in  European  politics.  It  is 
easy  to  imagine  the  use  that  would  be  made  by  an  autocratic 
European  State,  based  on  military  ideals,  of  the  warlike  races 
of  Northern  India,  who  would  like  nothing  better  than  to 
set  out  on  a  career  of  conquest  under  military  leaders 
equipped  with  all  the  resources  of  science.  As  a  matter  of 
fact,  the  British  army  in  India  consists  partly  of  troops 
raised  in  the  United  Kingdom  and  forming  part  of  the  British 

^  One  of  the  most  stringent  and  wholesome  of  these  makes  it  a  penal  offence 
for  any  higher  official  or  revenue  collector  to  be  concerned  in  trade  in  India, 
otherwise  than  as  a  member  of  a  joint-stock  company. 


GOVERNMENT    IN    INDIA  87 

regular  army  (p.  1*75),  partly  of  native  regiments,  volun- 
tarily recruited,  and  led  by  European  officers,  and  partly  of 
European  volunteers  resident  in  India.  But  it  can  only  be 
used  outside  India  with  the  approval  of  the  Imperial  Parlia- 
ment; and  it  is  never  so  used  except  in  cases  of  real  emer- 
gency. Moreover,  though  the  cost  of  its  equipment  and 
maintenance  in  India  is,  naturally,  borne  by  the  revenues  of 
India,  the  cost  of  maintaining  Indian  troops  during  their 
rare  appearances  in  Europe  is  borne  by  the  Imperial  Ex- 
chequer, to  which  India  does  not  contribute.  An  important 
legal  consequence  of  these  facts  is,  that  the  native  Indian 
Army  does  not  come  under  the  provisions  of  the  Army  Act, 
to  be  hereafter  explained  (p.  175),  nor  is  it  affected  by  the 
well-known  rule  laid  down  by  the  Bill  of  Rights  against  the 
maintenance  of  a  standing  army  in  time  of  peace  without  the 
consent  of  Parliament  (p.  174).  It  is  governed  by  Articles 
of  War  issued  by  the  Governor-General  of  India  in  Council. 
At  the  outbreak  of  the  great  war,  its  numbers  were  approxi- 
mately as  follows :  British  troops  raised  in  the  United  King- 
dom and  forming  part  of  the  British  "  regular  "  army, 
77,500;  native  troops  officered  by  Europeans,  159,000;  in 
addition  to  Indian  reserves  of  36,000,  and  European  "  Vol- 
unteers "  in  India,  39,000. 

British  Protectorates 

It  now  remains  only  to  allude  to  those  states  and  terri- 
tories which,  though  not  forming  part  of  the  British  Empire, 
are  so  closely  connected  with  it  that  a  brief  account  of  their 
relationship  to  it  is  essential  to  an  understanding  of  the  gov- 
ernment of  the  Empire. 

Feudatory  States  of  India 

The  first  and  most  important  class  of  these  states  is  the 
feudatory  States  of  India,  i.e.  those  states  in  the  Indian 
Peninsula  which  are  governed  by  their  native  rulers,  but 
which  acknowledge  the  suzerainty  of  the  British  Crown.    The 


88  TERRITORIES    OF    THE    EMPIRE 

precise  relationship  of  each  with  the  Indian  Government  is 
settled  by  the  terms  of  a  treaty;  but,  in  substance,  the  Im- 
perial suzerainty  in  each  is  expressed  by  the  three  rules : 
(1)  that  they  must  not  enter  into  any  direct  relations  with 
foreign  states,  (2)  that  the  size  of  their  armies  is  limited, 
and  (3)  that  they  must  accept  the  general  advice  of  a  British 
Resident,  who  is  a  Crown  official,  and  who  keeps  the  Indian 
Government  in  touch  with  their  affairs.  This  important 
personage  naturally  looks  after  the  interests  and  welfare 
of  British  subjects  resident  in  the  feudatory  states.  But  a 
wholesome  rule  forbids  any  European  to  be  attached  to  the 
court  of  a  native  ruler  without  the  permission  of  the  Imperial 
Government;  and  any  British  subject  who  lends  money  to 
any  Indian  Prince  or  Ruling  Chief,  is  guilty  of  a  punishable 
misdemeanour.  In  time  of  war,  the  Princes  of  the  feudatory 
states  are  expected  to  assist  the  Indian  Government ;  and  one 
of  the  most  interesting  developments  of  this  policy,  volun- 
tarily suggested  by  the  Native  Princes  themselves,  is  the 
growth  of  the  Imperial  Service  troops,  i.e.  bodies  of  native 
soldiery  raised  and  maintained  by  the  Princes,  but  regularly 
inspected  by  British  officers  sent  for  the  purpose  by  the 
Viceroy.  At  the  outbreak  of  the  great  war,  these  troops 
numbered  upwards  of  21,000,  and  were  freely  offered  for  the 
defence  of  the  Empire  by  their  rulers.  On  the  other  hand, 
the  Indian  Government  recognizes  its  responsibility  for  pro- 
tecting the  Native  States  from  external  attack,  and,  if  neces- 
sary, for  maintaining  internal  order  and  good  rule  within 
their  borders.  For  this  purpose,  British  Courts  may,  if 
necessary,  be  established  in  them  by  the  Crown  by  Order  in 
Council,  under  the  provisions  of  the  Foreign  Jurisdiction  Act 
of  1890;  and  this  power  has  been  delegated  to  the  Governor- 
General  in  Council  by  an  Order  of  the  year  1902.  But  neither 
British  nor  British  Indian  law  is,  generally  speaking,  in 
force  within  them. 

The  feudatory  states  of  India  are  said  to  number  no  less 
than  six  hundred ;  among  the  more  important  of  them  being 
the  great  states  of  Baroda,  Mysore,  Kashmir,  Haidarabad, 


PROTECTORATES  89 

Gwalior,  Travancore,  and  Bikanir.  Beyond  this  circle  lie 
three  others  of  great  importance,  whose  connection  with  the 
British  Empire  is  slighter,  viz.  the  great  Emirate  of  Afghan- 
istan on  the  north-western,  and  the  independent  states  of 
Nepal  and  Bhutan  on  the  north-eastern  frontier.  The  latter 
two  have  political  relations  with  China,  but  are  not  al- 
lowed to  enter  into  relations  with  any  other  state  save  the 
British  Empire.  The  latter  rule  applies  also  by  treaty  to 
Afghanistan,  where,  and  in  Nepal,  there  is  a  British  Resi- 
dent. But  none  of  these  states  owes  military  allegiance  to 
the  British  Empire. 

Other  Protectorates 

Beyond  the  limits  of  India  altogether  lie  a  large  number 
of  British  Protectorates,  over  which,  though  not  included  in 
the  British  Empire,  and  not,  at  least  in  all  cases,  owing  alle- 
giance to  the  British  Crown,  the  latter  exercises  great  influ- 
ence. They  cannot  be  classed  into  different  groups  on  any 
strict  lines ;  but,  broadly  speaking,  they  may  be  divided  into 

(1)  countries  which,  though  the  seats  of  an  ancient  civiliza- 
tion, have  fallen,  so  far  as  their  native  governments  are  con- 
cerned, into  a  state  of  weakness  which  would,  if  they  were 
left  unprotected,  expose  them  to  the  plots  of  adventurers,  and 

(2)  countries  inhabited  mainly  by  uncivilized  races,  but  in 
which  British  colonists  have  been  allowed  to  settle. 

Egypt 

The  chief  example  of  the 'former  class  is  Egypt,  with  its 
back  territory,  the  Sudan.  Until  1914,  Egypt  was  nomi- 
nally under  the  suzerainty  of  the  Turkish  Sultans,  by  whom 
it  had  been  conquered  in  the  twelfth  century,  and  who 
treated  it  as  a  tributary,  though  half-independent  province, 
under  a  line  of  hereditary  rulers  known  as  Khedives.^  But 
the  internal  decay  of  Turkish  rule  had  invited  disturbances ; 
and,  since  the  year  1879,  Egypt  had  been  virtually  under 

'  These  rulers  had  been  virtually  independent  of  Turkish  control  since  1805. 


90  TERRITORIES    OF    THE    EMPIRE 

the  control,  first  of  Britain  and  France  jointly,  afterwards 
(from  1883)  of  Britain  alone,  exercised  through  a  series 
of  Agents  and  Consuls-General,  who,  while  nominally  acting 
only  as  advisers  to  the  Khedive,  really  directed  the  acts  of 
the  native  Ministers.  On  the  outbreak  of  war  with  Turkey, 
which  had  hitherto  been  secured  in  its  tribute,  in  1914,  it 
was  felt  that  it  was  impossible  for  the  nominal  suzerainty 
of  the  Turkish  Empire  to  continue;  especially  in  view  of  the 
importance  of  the  great  international  Suez  Canal,  and  the 
fact  that  the  reigning  Khedive,  Abbas  Hilmi,  openly  es- 
poused the  enemy  cause.  Turkish  suzerainty  was,  therefore, 
in  December  1914,  proclaimed  to  be  at  an  end ;  but  still  Egypt 
was  not  annexed  to  the  British  Empire,  the  Khedivial  Crown 
being  conferred  on  His  Highness  Hussein  Kamel,  the  lineal 
representative  of  Mahomet  Ali,  the  founder  of  Egyptian 
independence.  But  the  appearance  of  British  rule  was 
strengthened  by  the  conversion  of  the  Consul-Generalship 
into  a  High  Commissionership,  the  holder  of  which  office  is 
appointed  by  the  British  Crown,  and  virtually  controls  the 
Egyptian  Government  under  the  direction  of  the  British 
Foreign  Office.  There  is  a  considerable  native  army  in 
Egypt,  led  by,  and  largely  the  creation  of,  British  officers, 
at  the  head  of  whom  stands  the  Sirdar;  and  a  varying  num- 
ber of  troops  of  the  regular  British  army  is  quartered  there. 
By  virtue  of  certain  "  capitulations,"  or  treaties  with 
Turkey,  consular  courts  of  justice  have  been  set  up  in  Egypt 
for  the  protection  of  British  and  other  European  residents ; 
but  the  great  legal  reforms  at  present  being  carried  out  in 
Egypt  under  the  guidance  of  British  and  French  experts  will, 
probably,  soon  render  possible  the  establishment  of  a  uniform 
judicial  system  for  natives  and  foreigners  alike.  There  have 
been  a  certain  number  of  self-governing  institutions  cau- 
tiously introduced  into  Egypt  under  British  influence,  as 
well  as  an  extensive  system  of  local  government ;  but  it  would 
be  beyond  the  province  of  this  book  to  go  into  details  on 
these  points,  though  reference  to  them  will  be  made  hereafter 
(p.  359).     It  should,  however,  be  mentioned  that  the  Sudan, 


PROTECTORATES  91 

which  was  conquered  from  the  Khalifa  in  1898  by  British  and 
Egyptian  troops,  is  in  a  position  slightly  different  from 
that  of  Egypt  proper;  being  held  under  joint  British  and 
Egyptian'  sovereignty,  exercised  through  a  Governor-Gen- 
eral, who  is  in  fact  appointed  by  the  British  Cabinet. 

African  and  other  Protectorates 

The  other  great  class  of  British  Protectorates  consists,  as 
has  been  said,  of  those  countries  in  a  backward  state  of  civil- 
ization, in  which  British  traders  and  colonists  have  been  al- 
lowed by  the  native  rulers  to  settle,  and  in  which  the  British 
Emj)ire  has,  therefore,  considerable  interests.  Even  in  this 
class  there  is  no  uniformity.  Some  of  these  territories,  such 
as  Nigeria,  Swaziland,  British  East  Africa,  Somaliland, 
Uganda,  and  the  Western  Pacific,  are  almost  Crown  colonies, 
under  the  rule  of  Commissioners  or  High  Commissioners  ap- 
pointed by  the  Crown,  sometimes  directly  responsible  to  the 
Colonial  Office  (as  in  the  Western  Pacific),  in  others  to  a 
superior  Colonial  official  (as  in  the  case  of  most  of  the  South 
African  group),  sometimes  assisted  by  councils  appointed 
by  the  Secretary  of  State  (East  Africa  and  Nyasaland), 
sometimes  not,  sometimes  (as  in  Somaliland  and  Uganda) 
exercising  jurisdiction  over  British  subjects  and  natives 
alike,  sometimes  (as  in  Nigeria  sCnd  Nyasaland),  only  over 
British  subjects.  The  precise  conditions  in  each  case  can 
only  be  ascertained  by  reference  to  the  Order  in  Council  re- 
lating to  the  Protectorate.  In  this  connection,  however,  it 
should  be  specially  noted  that,  by  an  important  Act  of  Par- 
liament, the  British  Settlements  Act  of  1887,  power  is  con- 
ferred on  the  Crown  to  establish,  by  Order  in  Council,  laws 
and  institutions  which  shall  bind  British  subjects  in  such 
countries,  in  spite  of  the  general  rule  previously  explained 
(p.  57). 

Chartered  Companies 

Other  members  of  this  class  are  really  territories  colonized 
by  the  efforts  of  Chartered  Companies,  such  as  Northern  and 


92  TERRITORIES    OF    THE    EMPIRE 

Southern  Rhodesia,  which  are  substantially  administered  by 
the  British  South  Africa  Company,  through  administrators 
appointed  by  it  with  the  approval  of  the  Colonial  Office,  and 
assisted  by  executive  or  even  (in  Southern  Rhodesia)  legis- 
lative councils  containing  elected  representatives  of  the 
settlers. 

"  Spheres  op  Influence  " 

Beyond  these,  again,  there  is  an  outlying  fringe  of  tropical 
or  oriental  states  (such  as  Zanzibar,  the  Malay  States,  and 
Brunei),  in  which  British  influence  is  practically  confined  to 
excluding  dealings  with  foreign  states,  giving  advice  through 
a  resident  representative  at  the  court  of  the  native  ruler, 
and  establishing  consular  courts,  under  the  powers  conferred 
by  the  Foreign  Jurisdiction  Acts,  for  the  protection  of  Brit- 
ish subjects.  Through  these  "  spheres  of  influence,"  the 
power  of  the  British  Empire  finally  fades  away  into  areas, 
the  intrusion  into  which  of  foreign  Powers  is  resented, 
but  which  owe  neither  allegiance  nor  submission  to  the  British 
Crown. 


CHAPTER   V 

THE    IMPERIAL    CABINET 

Like  the  Imperial  Parliament,  that  peculiar  institution  which 
we  call  "  the  Cabinet,"  and  which  is  the  real  depositary,  for 
the  time  being,  of  the  powers  of  government,  is  purely  Eng- 
lish in  origin,  and  is  one  of  the  many  experiments  in  the  art 
of  government  which  England  has  shown  to  the  world.  Like 
the  Imperial  Parliament,  also,  it  has  expanded,  from  a  purely 
English  origin,  to  include  the  other  countries  of  the  United 
Kingdom,  and,  finally,  all  the  territories  of  the  Empire. 
Happily,  by  virtue  of  its  greater  flexibility,  it  has  been  found 
more  easy  to  adapt  it,  than  Parliament,  to  the  performance 
of  Imperial  duties. 

Something  has  already  been  said  (pp.  31—33)  of  the 
events  which  brought  Cabinet  government  into  existence; 
but  the  Cabinet  is  so  mysterious  and  so  informal  a  body, 
that  it  is  difficult  to  explain  its  working  and  character  with- 
out dealing  a  little  further  with  its  history. 

Origin  of  the  Cabinet 

When  it  became  clear,  after  the  Restoration  of  Charles  II, 
that  the  old  system  of  personal  government  by  the  King,  act- 
ing on  the  advice  of  his  Privy  Council,  was  doomed,  there  was 
a  period  of  doubt  and  hesitation,  which  lasted  for  more  than 
half  a  century.  In  spite  of  the  Civil  War,  it  is  possible  that, 
if  Charles  II  and  his  immediate  successors  had  been  able  and 
honest  men,  willing  to  devote  themselves  sympathetically  to 
the  task  of  governing  the  country,  the  old  system  might  have 
survived  in  a  slightly  modified  form.  Certainly  the  usual 
reason  given  for  the  decline  in  power  of  the  Privy  Council, 


94.  THE    IMPERIAL    CABINET 

viz.  that  it  had  grown  too  large,  is  inadequate  —  English 
statesmanship  had  solved  harder  tasks  than  the  mere  reduc- 
tion of  an  official  body.  But  Charles  II  himself,  though  able, 
was  frivolous  and  indifferent  to  power;  his  brother  and  suc- 
cessor was  stupid  and  bigoted;  William  of  Orange,  though 
an  able  and  even  brilliant  ruler,  had  his  mind  fixed  on  foreign, 
rather  than  domestic  problems ;  Anne  Avas  weak  and  lethargic ; 
George  I  and  his  son  knew  little  of  England,  and  cared  less. 
And,  in  contrast  with  this  indifference  and  frivolity,  there  lay 
deep  in  the  minds  of  sober  people,  though  not  altogether  with 
affection,  a  memory  of  that  great  Parliamentary  struggle 
which  had  brought  Charles  I  to  the  block,  and  had  been  fol- 
lowed by  a  period  in  which  the  power  and  grandeur  of  Crom- 
well's rule  had  made  England  respected,  as  never  before,  in 
the  world.  It  was  to  Parliament  then,  and  especially  to  the 
House  of  Commons,  that  men's  eyes  turned. 

But  the  House  of  Commons  itself  was,  in  a  sense,  a  de- 
feated body.  It  had  tried  to  govern  England  directly;  and 
it  had  failed.  Whether  the  "  Rump "  Parliament  which 
Cromwell  dissolved,  or  Cromwell  himself,  was  the  more  popu- 
lar, or  the  least  unpopular,  in  the  country,  it  is  difficult  to 
say ;  but  Cromwell  could  truly  claim  that  not  a  voice  had  been 
raised  in  protest  against  "  Pride's  Purge."  A  similar  fate 
had  befallen  the  less  ambitious  attempt  of  Parliament  to 
secure  indirect  control  of  the  government  by  nominating  the 
Council  of  State  and  the  Crown's  Ministers.  This  had  long 
been  a  cherished  ambition ;  but  the  Protector,  in  his  schemes 
of  a  Constitution,  would  not  have  it,  and  his  strong,  practical 
sense  was  justified.  Nevertheless,  the  claim  of  Parliament 
to  rule  England  was  sound  in  essence,  if  mistaken  in  form ; 
and,  as  often  happens,  was  to  be  achieved  by  indirect  means 
when  direct  means  had  failed. 

Ministers  in  Parliament 

For  Charles  II,  who,  as  he  expressed  it  himself,  was  deter- 
mined not  to  "  set  out  on  his  travels  again,"  soon  found  that 
it  was  easier  and  safer  to  cajole  and  flatter  Parliament  than 


ORIGIN  95 

to  override  it;  and,  as  he  had  none  of  those  moral  scruples 
which  were  the  redeeming  features  in  the  otherwise  unheroic 
character  of  his  father,  he  proceeded  to  employ  confidential 
agents  to  "  influence  "  the  votes  of  its  members.  At  first, 
he  allowed  his  old-fashioned  advisers,  such  as  Clarendon  and 
Middlesex,  the  Lord  Chancellor  and  Lord  Treasurer,  to  ex- 
pound their  policy  laboriously  at  the  meetings  of  the  Privy 
Council,  whilst  his  secret  agents,  whose  names  are  only  known 
from  unofficial  sources,  such  as  diaries  and  Court  gossip, 
really  pulled  the  strings,  and  worked  up  a  majority  for  the 
Crown  in  the  House  of  Commons.  Sometimes  these  agents 
were  not  even  members  of  the  House,  but  did  their  work  in 
the  lobbies  and  on  the  staircases  at  Westminster.  Obviously, 
however,  they  had  more  chance  of  success  if  they  had  access 
to  the  House  itself,  and  could  thus  raise  their  voices  in  debate, 
albeit  with  caution,  in  favour  of  the  Crown's  wishes.  So  suc- 
cessful were  they,  in  some  cases,  that  the  King  actually  re- 
warded them  with  admission  to  the  Privy  Council  itself;  to 
the  disgust  of  Ministers  of  the  older  type,  who  saw  themselves 
superseded  by  unofficial  interlopers,  who  really  enjoyed  that 
confidence  which  the  King  denied  to  his  official  advisers. 

Unpopularity  of  System 

This  was  a  very  bad  kind  of  government;  and  it  is  satis- 
factory to  know,  that  both  William  of  Orange  and  the  hon- 
ester  spirits  in  Parliament  thoroughly  detested  it,  and  did 
their  best  to  defeat  it.  William  of  Orange  would  never  admit 
that  he  ought  to  leave  himself  in  the  hands  of  his  advisers, 
or  be  dictated  to  in  choosing  them. 

The  Act  of  Settlement 

In  fact.  Parliament,  after  one  or  two  unsuccessful  at- 
tempts, managed  to  pass  into  law,  by  the  Act  of  Settlement 
of  1700,  a  provision  by  which  no  one  holding  an  office  or  place 
of  profit  under  the  King,  or  receiving  a  pension  from  the 
Crown,  should  be  capable  of  serving  as  a  member  of  the 


96  THE    IMPERIAL    CABINET 

House  of  Commons.  This  provision,  had  it  been  enforced, 
would  have  rendered  Cabinet  government  impossible,  or 
would,  at  any  rate,  have  compelled  the  Cabinet  to  draw  its 
members  from  the  House  of  Lords  exclusively. 

The  Place  Acts 

Happily,  as  it  became  clear  that  Cabinet  government  was 
the  best  solution  of  the  pending  question,  how  England  was 
to  be  governed,  this  provision  of  the  Act  of  Settlement  (which 
was  not  to  take  effect  till  the  death  of  Queen  Anne)  was  re- 
pealed, and  a  new  one  substituted  by  the  Succession  to  the 
Crown  Act  of  1707,  to  the  effect  that  any  member  of  the 
House  of  Commons  accepting  a  place  of  profit,  or  pension 
at  pleasure,  under  or  from  the  Crown,  should,  ipso  facto, 
vacate  his  seat,  and  be  incapable  of  election ;  except  that  per- 
sons accepting  offices  originally  created  before  October,  1705 
(the  date  of  the  Act  of  Security,  which  first  attempted  this 
compromise),  might  be  afterwards  elected,  or  re-elected,  to 
the  House  of  Commons.  This  compromise,  with  certain 
minor  alterations,  of  which  the  most  important  is  the  dis- 
qualifying not  merely  of  pensioners  at  pleasure,  but  of  all 
pensioners  (with  a  few  exceptions),  remains  in  force  at  the 
present  day  as  a  foundation  principle  of  the  Cabinet  System; 
and  the  rule  of  exclusion  has  been  extended  to  persons  holding 
Government  contracts,  to  the  judges,  and  to  a  few  other 
classes  of  officials.  It  does  not,  however,  apply  to  the  holders 
of  naval  or  military  commissions ;  though  officers  on  active 
service  may  be  forbidden  to  take  any  prominent  part  in 
politics.  Nor  does  it,  curiously  enough,  extend  to  the  so- 
called  "  Parliamentary  "  Under-Secretaries  of  State,  because 
these  persons,  though  they  receive  salaries  from  the  Ex- 
chequer, do  not  hold  office  directly  under  or  from  the  Crown ; 
being  appointed  by  their  official  chiefs. 

The  Paety  System 

For,  as  has  been  hinted,  the  opposition  to  the  appearance 
of  Ministers  of  the  Crown  in  the  House  of  Commons  was 


EARLY    HISTORY  97 

doomed  to  defeat.  The  Revolution  of  1688  practically  placed 
the  internal  government  of  the  country  in  the  hands  of  a  few 
leading  statesmen,  from  whose  ranks  the  King  or  Queen, 
whether  he  or  she  liked  it  or  not,  was  in  practice  obliged  to 
choose  the  Crown's  INIinisters,  because  no  one  outside  had 
the  necessary  knowledge  and  authority.  But  these  statesmen 
(such  as  Danby,  Somers,  Nottingham,  Sancroft,  Halifax, 
and  Clarendon),  though  they  reluctantly  combined  to  offer 
the  crown  to  William,  were  really  divided  in  sentiment  be- 
tween the  old  royalist  and  the  Parliamentarian  ideas ;  and, 
when  it  became  clear  that,  on  the  death  of  Queen  Anne  with- 
out children,  the  duty  of  choosing  a  successor  would  again 
fall  upon  Parliament,  the  two  parties,  Jacobites  (or  sup- 
porters of  the  "Old  Pretender")  and  Hanoverians  (or 
favourers  of  the  new  Hanoverian  line),  began  rapidly  to 
organize  their  forces  in  the  country  for  the  coming  struggle, 
and  thus  laid  the  foundation  of  the  modern  Party  System, 
on  which  the  Cabinet  rests.  The  Hanoverian  party,  or 
Whigs,  won  the  first  round,  by  procuring  the  passing  of  the 
Act  of  Settlement,  before  referred  to  (p.  4),  which  secured 
the  Crown  to  the  Hanoverian  line.  But  the  Jacobites,  or 
Tories,  very  nearly  brought  off  a  counter-revolution  on  the 
death  of  Anne;  and  only  by  the  narrowest  margin  was 
George  I  safely  seated  on  the  throne.^  Consequently, 
George  I  and  George  II  were  compelled  to  do  what  William 
had  always  flatly  refused  to  do,  viz.  choose  their  Ministers 
from  one  party  only,  and  that  party  the  Whigs,  because  the 
Tories  hardly  disguised  their  intention  (which  took  open 
form  in  1715  and  1745)  of  trying  to  restore  the  line  of 
James  II.  It  was  during  the  reign  of  George  II  especially, 
that  the  Cabinet  System  was  definitely  worked  out  and  es- 
tablished by  Sir  Robert  Walpole,  who,  as  he  said,  would 
"Whig  it  with  anybody;  but  'ware  Tory."  It  was  not,  in 
fact,  until  the  accession  of  George  III,  an  English-born  King, 
that  the  Tories  became   even   lukewarm   supporters   of  the 

^  Those  who  care  to  get  a  good  idea  of  this  crisis  in  a  delightful  form  should 
read  Thackeray's  Esmond. 


98  THE    IMPERIAL    CABINET 

Hanoverian  line;  and,  even  then,  George  III,  who  hated  the 
Cabinet  System,  and  desired  to  return  to  personal  rule, 
chiefly  made  use  of  them  to  destroy  Walpole's  work. 

Appearance  of  New  Parties 

But  the  system  had  taken  too  firm  root  to  be  torn  up,  even 
by  the  industry  and  resolute  will  of  George  HI;  and  when, 
after  the  disastrous  loss  of  the  American  colonies,  and  the 
failures  of  the  war  with  France,  Lord  North's  Ministry, 
which  merely  carried  out  the  King's  wishes,  fell  with  a  crash, 
personal  government  disappeared,  and  the  Tory  party,  under 
the  masculine  guidance  of  Pitt,  became  as  loyal  to  the  Cabinet 
and  Party  System  as  the  Whigs. 

Radicals 

In  the  first  half  of  the  nineteenth  century,  the  fierce  names 
of  "  Tory  "  and  "  Whig  "  (originally  terms  of  abuse)  were 
replaced  by  the  milder  titles  of  "  Conservative  "  and  "  Lib- 
eral " ;  and  the  change  marked  the  growth  of  a  calmer  feel- 
ing in  politics,  whilst  the  appearance  of  a  third,  or  "  Radi- 
cal "  party,  though  it  ultimately  coalesced  with  the  Liberals, 
showed  that  the  new  class  of  intelligent  artizans  created  by 
the  industrial  revolution  in  the  North,  was  determined  to 
take  its  share  in  the  government  of  the  Empire. 

Home  Rulers 

The  growth  of  Irish  feeling  which  demanded  the  repeal 
of  the  Act  of  Union  of  1800  (p.  54),  gave  rise  to  a  fourth 
or  "  Home  Rule  "  party  in  the  last  half  of  the  nineteenth 
century ;  though  this  can  hardly  be  reckoned  as  part  of  the 
Cabinet  System,  because  its  members  steadily  refused  to  ac- 
cept office  from  the  Crown,  even  after  their  policy  had  been 
made  part  of  their  own  programme  by  the  official  leaders  of 
the  Liberal  party.  The  chief  result,  in  fact,  of  this  last  step, 
so  far  as  the  Party  System  was  concerned,  was  to  cause  a 
split  in  the  Liberal  ranks,  and  throw  over  many  of  the  more 


THE    PARTY    SYSTEM  99 

sedate  members  of  that  party  into  the  ranks  of  the  Conserva- 
tive party,  which  thereupon  assumed  the  more  sectarian  title 
of  "  Unionist."  ^ 

Laboue 

On  the  other  hand,  the  older  type  of  Radical,  dating  from 
the  beginning  of  the  nineteenth  century,  the  disciple  of  Ben- 
tham  and  Mill,  began  to  merge  indistinguishably  in  the  Lib- 
eral ranks,  while  the  newer  type  of  artizan  politician  began 
to  assume  the  designation  of  "  Labour,"  and,  like  the  Home 
Ruler,  to  separate  himself  from  other  parties,  and  rest  upon 
the  powerful  Trade  Union  organization.  There  is,  however, 
this  important  difference  between  the  Irish  Home  Ruler  and 
the  Labour  Member,  that  the  latter  does  not  always  object, 
if  he  can  get  satisfactory  terms,  to  join  the  Ministry;  and 
there  is  no  reason  to  suppose  that,  despite  sectional  differ- 
ences in  its  ranks,  the  Labour  Party  as  a  whole,  if  it  were  in 
a  majority  in  Parliament,  would  object  to  form  a  Government. 

Conventional  Character  of  Cabinet  System 

Having  thus  attempted  to  sketch  the  history  of  the  Cabi- 
net system,  and  the  changes  of  parties  on  which  it  rests, 
we  may  now  set  out  briefly  the  rules  which  govern  its  work- 
ing. One  very  remarkable  thing  about  these  rules  is,  that 
they  do  not  rest  (for  the  most  part)  on  express  law,  much 
less  on  Act  of  Parliament,  but  merely  upon  custom  and  pub- 
lic opinion.  Thus,  for  example,  no  court  of  law  could  take 
notice  of  the  fact  that  a  Minister  had  refused  to  resign 
office  when  he  ought,  by  the  rules  of  the  system,  to  have  done 
so,  or  the  fact  that  an  Order  in  Council,  though  nominally 
made  by  the  King  and  Privy  Council,  was  really  the  work  of 
a  single  member  of  the  Cabinet.  Such  errors,  if  errors  they 
be,  are  left  to  be  visited  solely  by  the  political  action  of  Par- 
liament or  the  electorate.  As  a  consequence,  it  is  impossible 
to  give  more  than  a  vague  authority  for  these  really  impor- 

^  There  was  a  temporary  intermediate  stage  known  as  "Liberal  Unionism," 
on  which  some  of  the  emigrants  rested  for  a  while. 


100  THE    IMPERIAL    CABINET 

tant  rules.  Another  consequence  is,  that  the  rules  them- 
selves can  be  modified  with  extraordinary  ease  if  circum- 
stances demand  it.  This  latter  consequence  has  its  good,  as 
well  as  its  doubtful  side. 

The  King  acts  on  the  Advice  of  the  Cabinet 

(1)  The  first  rule  of  the  Cabinet  System  is:  that  the 
King,  in  return  for  the  immunity  from  personal  censure  or 
criticism  guaranteed  him  by  the  maxim  that  "  the  King  can 
do  no  wrong,"  places  the  whole  of  the  executive  machinery 
of  the  Crown,  and,  with  the  rare  exceptions  before  alluded 
to  (pp.  39-41),  the  whole  of  the  vast  powers  and  preroga- 
tives of  the  Crown,  described  in  Chapter  I,  at  the  disposal 
of  the  Cabinet  as  a  whole.  This  result  was  not  attained  with- 
out a  sharp  struggle.  Domestic  affairs,  at  any  rate  secular 
affairs,  and  the  political  patronage  connected  with  them, 
were  early  secured  by  the  Cabinet.  "  As  for  your  scoundrels 
of  the  House  of  Commons,"  said  George  II  to  Walpole,  "  you 
may  do  as  you  please."  But  His  Majesty  demurred  to  allow- 
ing his  Ministers  any  voice  in  the  management  of  navy  or 
army;  and  it  was  only  by  slow  degrees  that  Cabinet  control 
in  these  quarters  was  secured.  The  management  of  foreign 
affairs,^  and  the  disposal  of  the  higher  ecclesiastical  patron- 
age of  the  Crown  (pp.  296,  297),  were  for  long  subjects  of 
contest;  till  the  middle  of  the  nineteenth  century,  the  mon- 
arch was  reluctant  to  relinquish  personal  authority  in  these 
directions. 

Resulting  Popularity  of  the  Crown 

We  need  not  repeat  the  discussion  attempted  in  a  former 
part  of  this  book  (pp.  36-41),  as  to  the  effect  of  this  rule  of 
the  Cabinet  System  on  the  personal  position  of  the  King  and 
the  character  of  the  monarchy.  It  is  sufficient  to  point  out 
here  that,  so  far  from  weakening  the  hold  of  the  Crown  on 

1  It  will,  of  course,  be  observed,  that  the  much-debated  question  of  "secret 
diplomacy"  is  not  a  question  between  the  King  and  Ministers  but  between 
Ministers  and  Parliament.     This  question  it  dealt  with  later  (pp.  215-217). 


.    THE    CABINET    SYSTEM  101 

the  affections  and  loyalty  of  its  subjects,  it  has  immensely  in- 
creased it.  In  fact,  it  is  hardly  going  too  far  to  say  that,  but 
for  its  adoption,  the  monarchy  would  have  long  ago  ceased 
to  exist.  George  I  and  George  II  were  aliens  who  aroused 
no  enthusiasm  in  the  hearts  of  their  British  subjects,  and 
whose  distant  ties  of  blood  with  the  English  Royal  House 
were  too  faint  to  awaken  the  hereditary  loyalty  of  the 
people.  The  accession  of  George  III  was  popular,  as  that 
of  a  native-born  ruler.  But,  despite  his  personal  virtues, 
"  Farmer  George  "  rapidly  lost  his  popularity  by  attempting 
to  force  his  personal  will  upon  the  policy  of  the  State  —  in 
other  words,  by  refusing  to  accept  the  first  principle  of  the 
Cabinet  System ;  and  it  was  not  till  disastrous  failure  and 
illness  compelled  him  to  give  way,  that  he  became  popular 
once  more.  The  reigns  of  George  IV  and  William  IV  were 
too  short  to  allow  much  test  of  the  system ;  but  the  long  reign 
of  Queen  Victoria,  who,  though  not  without  some  wavering 
in  its  early  years,  loyally  accepted  the  principle  under  dis- 
cussion, placed  the  throne  firmly  on  a  basis  of  popular  ap- 
proval which  renders  it  not  only  the  most  splendid,  but  the 
most  secure  throne  in  the  world. 

(2)  The  second  rule  of  the  Cabinet  System  is,  that  the 
exercise  of  the  powers  and  prerogatives  thus  ceded  by  the 
Crown  shall  be  entrusted  to  a  comparatively  small  body  of 
leading  statesmen,  unknown  to  the  law,  but  designated  in 
popular  language  as  the  "  Ministry  "  or  "  Cabinet."  But 
these  terms,  though  used  indifferently  in  ordinary  speech, 
are  not  synonymous. 

The  "  Ministry  " 

The  "  Ministry  "  includes  the  whole  of  the  Crown  officials 
"  responsible  to  Parliament,"  i.e.  those  officials  who  occupy 
seats  in  Parliament,  and  resign  office  at  once  if  Parliament, 
i.e.  the  House  of  Commons,  expresses  disapproval  of  their 
policy.  Whether  they  all  resign,  or  only  the  Minister  spe- 
cially affected,  is  a  delicate  problem,  to  be  settled  by  the  cir- 
cumstances of  each  individual  case.     If  the  disapproval  of 


102  THE    IMPERIAL    CABINET 

Parliament  is  based  on  purely  administrative  or  executive 
conduct,  the  work  of  a  single  department,  the  Minister  in 
charge  of  that  department  alone  resigns ;  unless  his  col- 
leagues choose  to  identify  themselves  with  him.  But  if  the 
action  (or  inaction)  condemned  by  the  House  was  the  result 
of  the  deliberate  policy  of  the  Cabinet,  then  the  whole  Minis- 
try tenders  its  resignation. 

It  is  this  liability  to  loss  of  office  on  political  grounds 
which  distinguishes  all  the  members  of  the  "  Ministry  "  from 
the  great  mass  of  the  civil  servants  of  the  Crown ;  though  in 
legal  position  all,  or  nearly  all,  Ministers  and  non-political  offi- 
cials alike,  stand  on  the  same  footing.  With  the  rare  excep- 
tions of  the  judges  (p.  12)  and  a  very  few  other  officials  of 
exceptional  importance,  such  as  the  Comptroller  and  Auditor 
General,  who  hold  their  offices  during  good  behaviour  {quam 
diu  bene  se  gesserint),^  all  the  servants  of  the  Crown  hold 
their  offices  during  the  Crown's  pleasure  (dum  bene  placito), 
and  can,  in  theory,  be  dismissed  at  a  moment's  notice,  without 
reason  assigned.  In  substance,  the  great  majority  of  civil 
servants  are,  as  has  been  said,  recruited  by  a  system  of  exam- 
ination, and  (unless  the  contrary  is  distinctly  specified  at  the 
time  of  their  appointment)  hold  their  position  in  the  Govern- 
ment service  for  life,  or  until  they  reach  the  age  limit  or 
resign.  They  are  thus  known,  though  not  with  legal  accu- 
racy, as  the  "  permanent  "  civil  service,  and,  as  has  been 
said,  stand  in  sharp  contrast  with  the  members  of  the  Min- 
istry, who  are  liable  to  loss  of  office  on  political  grounds. 
Again,  it  should  be  pointed  out,  that  this  liability  to  resign 
is  not  a  legal  obligation ;  though,  doubtless,  an  official  who 
refused  to  resign  could  be  dismissed  by  the  Crown  if  he  re- 
mained obstinate.  In  fact,  there  is  one  well-known  case  in 
which  a  former  King  sent  for  a  Minister's  "  seals  of  office," 
without  giving  him  an  opportunity  to  resign ;  but  this  action 
was  universally  condemned,  as  would  be  any  attempt  by  the 
King,  except  in  the  clearest  circumstances,  to  hasten  or  in- 

^  A  few  (e.g.  the  members  of  the  Council  of  India)  hold  for  a  fixed  period 
of  years,  subject,  of  course,  to  good  behaviour. 


NATURE    OF    THE    CABINET  103 

fluence  the  resignation  of  Ministers.  But  the  extremely  awk- 
ward position  which  a  Minister  would  occupy  in  Parliament 
if  he  clung  to  office  after  his  exercise  of  it  had  been  condemned, 
is  sufficient  to  ensure  obedience  to  the  rule  of  resignation. 

The  "Cabinet" 

Within  the  Ministry,  however,  the  real  control  of  the 
policy  of  the  Government  is  exercised  by  a  body  known  as 
the  "  Cabinet,"  which  comprises  a  smaller  or  larger  group 
of  leading  statesmen,  each  of  whom  enjoys,  or  is  at  least  sup- 
posed to  enjoy,  the  confidence  of  the  country,  and  to  exercise 
a  real  influence  on  the  policy  of  the  State,  There  is  more 
than  one  remarkable  feature  in  the  nature  and  work  of  the 
Cabinet,  which  must  be  treated  separately. 

In  the  first  place,  the  Cabinet  is,  as  has  been  said,  a  body 
wholly  unrecognized  by  law.  It  is  often  described  as  an  "  in- 
formal committee  of  the  Privy  Council  " ;  and  there  is  some- 
thing in  its  origin  and  nature  to  justify  this  description. 
For  the  Cabinet  has,  undoubtedly,  taken  the  place  in  the 
government  of  the  State  previously  occupied  by  the  Privy 
Council ;  its  members  are  always  made  Privy  Councillors,  and 
take  the  Privy  Councillor's  oath  of  secrecy;  and  the  more 
formal  resolutions  of  the  Cabinet  may  be  issued  in  the 
form  of  Orders  in  Council  (p.  16),  though  as  a  matter  of 
fact,  they  are  never  discussed  at  a  meeting  of  the  Privy 
Council  at  all. 

Formal  Meetings  of  the  Privy  Council 

A  meeting  of  the  Privy  Council  held  by  the  King  is,  in  fact, 
now  a  purely  formal  assembly.  The  Lord  President  of  the 
Council  (p.  224),  or  some  Minister  (usually  the  Lord  Privy 
Seal)  acting  on  his  behalf,  is  always  there;  while  the  other 
members  present  (as  a  rule  three)  may  include  any  Minister 
whose  department  is  concerned  with  the  business  to  be  sub- 
mitted, one  of  the  great  Officers  of  State  (pp.  226,  227),  and 
any  other  member  of  the  Council  (generally  a  member  of  Par- 


104  THE    IMPERIAL    CABINET 

liament  or  of  the  Royal  Household).  The  presence  of  these 
persons  is  required  for  the  King's  formal  sanction  to  Procla- 
mations and  Orders  previously  approved  by  the  Cabinet,  or, 
in  minor  matters,  by  a  Minister  in  charge  of  a  department. 
The  really  essential  person  on  such  occasions  is  the  Clerk  of 
the  Council,  who  enrols  in  accurate  form  on  the  Minutes  of 
the  Privy  Council,  and  identifies  with  his  signature  the  vari- 
ous documents  approved.  Thus  it  will  be  seen  that,  if  the 
Cabinet  is  a  committee  of  the  Privy  Council,  it  is  a  committee 
which  acts  with  complete  independence  of  its  parent  body. 

Moreover,  it  is  not,  as  a  real  committee  of  Council  would 
be,  appointed,  even  formally,  by  the  Privy  Council,  or  by 
the  King.  It  is  a  body  formed  by  the  Prime  Minister,  i.e. 
the  person  entrusted  by  His  Majesty  with  the  task  of  form- 
ing, not  a  Cabinet,  but  a  Ministry,  who,  out  of  the  persons 
whom  he  selects  for  recommendation  to  the  King  for  appoint- 
ment to  various  Crown  offices,  further  selects  a  limited  num- 
ber to  form  the  Cabinet.  No  doubt,  in  submitting  his  list  of 
Ministers,  the  Prime  Minister  indicates  also  his  choice  of  a 
Cabinet ;  but,  in  strictness,  the  King,  though  he  can,  at  least 
nominally,  refuse  to  appoint  a  particular  person  as  a  Minis- 
ter, or  even  to  make  him  a  Privy  Councillor,  cannot  object 
to  the  inclusion  of  any  person  in  the  Cabinet,  which  is,  as 
was  said  before,  a  body  unknown  to  the  law.  He  could,  no 
doubt,  by  striking  his  name  off  the  Register  of  the  Privy 
Council,  in  effect  exclude  even  an  existing  Privy  Councillor 
from  the  Cabinet ;  because  it  would  be  a  breach  of  confidence 
for  the  other  members  of  the  Cabinet  to  talk  State  secrets 
to  an  outsider.  But  that  would  be  an  extreme  measure,  which 
would  probably  cause  the  resignation  of  the  Prime  Minister ; 
because  it  would  show  that  the  King  had  ceased  to  trust  him. 

The  Prime  Minister 

The  Prime  Minister  is  then,  really,  the  important  person, 
both  in  the  making  and  continuance  of  a  Cabinet ;  for  he  not 
only  selects  its  members,  but  summons,  not  through  the  Clerk 
of  the  Council,  but  through  his  own  private  secretary,  meet- 


THE    PREMIER    AND    THE    CABINET       105 

ings  of  "  His  Majesty's  servants,"  to  his  own  house  (which 
need  not  be,  though  it  generally  is)  an  official  residence,  at 
any  time  that  he  likes,  and  as  often  as  he  deems  it  expedient. 
Moreover,  he  may  even  include  in  his  Cabinet,  as  has  been 
done  on  many  occasions,  "  Ministers  without  portfolio,"  i.e. 
persons  not  holding  any  office,  or  holding  only  nominal,  or 
"  sinecure  "  offices,  under  the  Crown.  This  is  a  practice  which 
has  often  been  looked  askance  at,  especially  by  Parliament, 
which  likes  to  make  the  actual  holders  of  the  great  offices  re- 
sponsible for  the  general  policy  of  the  Government.  But  its 
lawfulness  is  undoubted,  or,  at  least,  as  undoubted  as  any- 
thing can  be  about  so  vague  a  body  as  the  Cabinet;  and, 
indeed,  on  one  well-known  recent  occasion  (December,  1916), 
a  Cabinet  was  formed  almost  entirely  of  persons  holding  no 
office,  or  only  "  sinecure  "  office.  Further  than  that,  the 
Prime  Minister  soon  after  took  the  bold,  but  extremely  popu- 
lar, step  of  including  in  that  Cabinet  a  Dominion  ex-Minister, 
who,  though  he  was  a  Privy  Councillor,  was  not,  and  never 
had  been,  a  member  of  the  Imperial  Parliament  at  all.  There 
could  be  no  better  illustration  of  what  is  rightly  called  the 
"  flexibility  "  of  the  Cabinet  System,  i.e.  the  power  to  adapt 
it,  quickly  and  without  fuss,  to  emergencies. 

Numbers  of  Cabinet 

Another  curious  point  about  the  Cabinet  is  the  variations 
in  its  numbers.  At  first  it  consisted  only  of  a  handful  of 
persons,  some  six  or  seven,  who  met  in  a  perfectly  informal 
way,  often  at  the  dinner-table.  Gradually  it  grew  in  size, 
partly  to  cope  with  the  growth  of  State  business,  partly  to 
strengthen  the  Government  by  enlisting  in  its  support  per- 
sons who  were  supposed  to  command  influence  in  the  country. 
At  the  outbreak  of  the  European  War,  it  had  become,  in  the 
opinion  of  many  people,  unduly  large,  sometimes  exceeding 
twenty  in  number;  and  its  deliberations  were  said  to  be 
assuming  much  more  the  character  of  set  debates  than  of 
short,  informal  talks.  If  so,  it  was  virtually  reproducing  the 
old  Privy  Council,  which,  by  reason  (amongst  other  things) 


106  THE    IMPERIAL    CABINET 

of  its  bulk,  ceased,  more  than  two  hundred  years  ago,  to  do 
real  business  (p.  93).  But  the  weakness  of  such  a  large 
Cabinet  was  shown  in  the  early  stages  of  the  European  War ; 
and,  as  is  well  known,  in  December,  1916,  the  then  new  Prime 
Minister  made  a  drastic  change,  by  reducing  its  numbers  to 
five  (the  so-called  "War  Cabinet"),  afterwards  increased 
to  six  by  the  popular  step  recently  alluded  to.  The  obvious 
design  of  this  change  was,  of  course,  to  create  a  small,  highly 
concentrated,  and  expeditious  body,  which  should  devote  the 
whole  time  of  its  members  to  questions  of  general  policy 
arising  out  of  the  war,  especially  those  needing  instant  hand- 
ling, while  leaving  all  the  other  Ministers  to  devote  themselves 
exclusively  to  the  working  of  their  own  particular  depart- 
ments. The  dangers  of  this  plan,  as  well  as  its  merits,  are 
obvious ;  the  chief  being  that  it  leaves  individual  INIinisters 
free,  subject  to  the  nominal  control  of  a  Cabinet  which  is, 
presumably,  fully  occupied  with  other  work,  to  pursue  their 
own  plans,  regardless  of  the  plans  of  their  colleagues  in  other 
departments,  and  thus  to  risk  the  growth  of  two  of  the  chief 
vices  of  bureaucracy,  viz.  sectional  rivalries  and  overlapping. 

Cabinet  Records 

Yet  another  very  striking  feature  of  the  work  of  the  Cabi- 
net is,  or  rather  was,  until  recently,  the  fact  that  it  kept  no 
formal  record  of  its  meetings.  As  a  recently  retired  Prime 
Minister  of  great  experience  said,  in  the  House  of  Commons, 
on  the  famous  occasion  of  December,  1916,  it  was  "  the  in- 
flexible, unwritten  rule  of  the  Cabinet,  that  no  member  shall 
take  any  note  or  record  of  the  proceedings  except  the  Prime 
Minister,  and  the  Prime  Minister  does  so  for  the  purpose  — 
and  it  is  the  only  record  of  the  proceedings  kept  —  of  send- 
ing his  letter  to  the  King."  It  is  easy  to  see  how  this  rule 
grew  up  —  it  is  not  convenient  to  interrupt  one's  dinner  for 
the  purpose  of  framing  formal  resolutions,  or  to  keep  a 
hungry  scribe  in  the  background  for  the  purpose.  But  it  is 
one  thing  to  explain  the  origin  of  a  rule,  and  quite  another 
to  justify  it;  and  it  is  hardly  in  accordance  with  British  tra- 


POSITION    OF    THE    PRIME    MINISTER     107 

ditions  of  business  capacity,  that  the  vast  responsibilities 
and  momentous  decisions  of  the  Imperial  .Cabinet  should 
depend  for  their  execution  on  the  casual  memories  of  informal 
conversations.  Accordingly,  it  was  with  some  relief  that  the 
nation  learnt,  on  the  occasion  alluded  to,  that  a  more  busi- 
ness-like method  was  in  the  future  to  be  followed,  and  that 
a  record  of  every  decision  would  be  sent  by  the  Prime  Minis- 
ter's secretary  to  every  member  of  the  Cabinet,  and,  if  neces- 
sary, to  any  department  or  Minister  affected  by  the  decision. 

Relations  between  the  Prime  Minister  and  his 
Colleagues 

Before  leaving  the  subject  of  the  composition  and  work 
of  the  Cabinet,  it  is  necessary  to  say  a  few  more  words  about 
the  peculiar  position  occupied  in  it  by  the  Prime  Minister; 
but  this  is  not  easy,  because  the  position  depends  largely 
upon  the  personal  character  of  the  Prime  Minister  for  the 
time  being,  and  the  circumstances  of  the  time. 

It  is,  however,  at  least  possible  to  point  out,  that  there 
is  no  such  office  as  that  of  Prime  Minister,  and  that,  until 
recently,  even  the  position  of  Prime  Minister  was  not  offi- 
cially recognized.  The  real  founder  of  that  position,  Sir 
Robert  Walpole,  as  is  well  known,  disliked  the  title,  and 
refused  to  allow  himself  to  be  called  by  it;  being  unwilling, 
with  his  customary  shrewdness,  to  give  occasion  for  jealousy. 
While  he  loved  the  reality  of  power,  he  was  indifferent  to 
the  appearance  of  it ;  and  the  wise  example  which  he  set  was 
long  followed  by  his  successors.  Further  than  that,  it  was 
long  a  matter  of  uncertainty  which  of  the  actual  offices  in 
the  Government  the  Prime  Minister  should  hold ;  sometimes 
that  of  Chancellor  of  the  Exchequer,  sometimes  that  of  For- 
eign Minister,  sometimes  that  of  First  Lord  of  the  Treasury. 
Gradually,  however,  this  last  office  was  found  to  be  the  most 
suitable ;  partly  because  it  involved,  as  will  be  subsequently 
explained  (p.  198),  little  or  no  actual  official  work,  partly 
because  the  commanding  position  of  The  Treasury  (p.  197) 
gave  its  nominal  chief  a  pre-eminence  in  the  official  world, 


108  THE    IMPERIAL    CABINET 

especially  in  the  matter  of  patronage.  At  last,  however,  the 
position  of  Prime  Minister  received  official  recognition  by 
the  issue  of  a  Royal  Warrant,  in  the  year  1905,  directing 
that  he  should  have  precedence,  in  all  State  ceremonials,  im- 
mediately after  the  Archbishop  of  York;  and  the  curious, 
though  not  really  important  anomaly,  of  a  Prime  Minister 
taking  official  rank  after  one  of  his  own  colleagues,  is  now 
abolished,  while  the  only  remaining  reason  for  associating 
the  position  with  any  sinecure  office,  viz.  the  necessity  for 
providing  the  Prime  Minister  with  a  salary,  can  easily  be 
obviated  by  a  direct  resolution  of  the  House  of  Commons. 

Again,  it  is  extremely  difficult  to  define  what  exactly  are 
the  powers  and  responsibilities  of  a  Prime  Minister,  as  dis- 
tinct from  those  of  his  colleagues.  It  is  sometimes  said,  that 
he  is  the  sole  means  of  communication  between  the  Cabinet 
and  the  King ;  but  this  cannot  be  literally  true,  for  the  "  Min- 
ister in  attendance  "  on  the  person  of  the  King  cannot  be 
supposed  to  be  a  mere  letter-carrier.  Perhaps  it  would  be 
truer  to  say,  that  the  King  would  not  take  any  really  momen- 
tous step  without  the  personal  advice  of  the  Prime  Minister, 
who,  as  we  have  seen  (p.  104),  virtually  appoints  the  mem- 
bers of  the  Ministry,  and  can,  in  substance,  and  subject  to 
the  risk  of  losing  his  supporters,  procure  the  resignation  of 
any  of  them  who  differ  from  his  policy.  In  the  exercise  of 
the  more  important  patronage  of  the  Crown,  including  the 
distribution  of  honours  and  distinctions,  also,  the  Prime 
Minister  has  a  decisive  voice;  it  is  said,  for  example,  that 
recent  Prime  Ministers  have  insisted  on  approving  the  ap- 
pointments to  the  higher  judicial  offices,  though  the  Lord 
Chancellor  is  the  Minister  primarily  concerned  with  such 
matters.  Again,  on  all  matters  of  general  policy,  at  any  rate 
those  of  first-class  importance,  it  is  the  Prime  Minister  who 
is  expected  to  speak  the  decisive  word  in  Parliament.  He  is, 
therefore,  unless  he  is  a  peer,  always  recognized  as  Leader 
of  the  House  of  Commons  ;  unless,  as  on  a  recent  occasion,  the 
urgent  needs  of  a  crisis  compel  him  to  delegate  his  duties  in 
this  respect  to  a  colleague.     Finally,  when  it  is  desirable  to 


POSITION    OF    THE    PRIME    MINISTER     109 

make  a  public  statement  of  Government  plans,  it  is  the  Prime 
Minister  who  addresses  a  public  meeting,  or  accords  an  inter- 
view to  representatives  of  the  Press.  But  when  a  message  is 
sent  to  the  head  of  a  foreign  State,  it  is  despatched  in  the 
King's  name  by  his  personal  secretary;  though  the  Prime 
Minister  and  his  more  important  colleagues  may  exchange 
public  messages  with  Ministers  in  other  countries. 

The  Ministry  and  Parliament 

(3)  The  third  great  rule  of  the  Cabinet  System  is,  that  the 
Ministry  must  retain  the  confidence  of  the  House  of  Com- 
mons, or  resign.  It  is  this  rule  which  is  the  essence  of  "  Par- 
liamentary," as  distinguished  from  merely  "  constitutional  " 
government,  and  which  makes  it  almost  impossible,  except  in 
times  of  national  crisis,  for  any  one  to  be  appointed  a  Minis- 
ter who  is  not  a  member  of  Parliament.  Further,  it  makes  it 
essential,  or,  at  least,  desirable,  that  all  the  more  important 
departments  of  State  should  be  represented  in  both  Houses 
by  chiefs  who  can  be  questioned,  and  defend  the  actions  of 
their  departments,  in  the  House.  This  is  usually  done  by 
appointing  as  head  of  each  department  a  member  of  one 
House,  and  as  Parliamentary  Under-Secretary,  or  other 
official  of  the  department,  a  member  of  the  other.  This  is 
the  object  of  the  otherwise  puzzling  provision  of  a  statute  of 
1864,  which  makes  elaborate  regulations  to  prevent  more 
than  four  (now  five)  Secretaries  and  four  (now  five)  Under- 
Secretaries  of  State  sitting  at  any  one  time  in  the  House  of 
Commons ;  for  this  provision  renders  it  almost  certain  that 
the  sixth  in  each  case  will  be  a  peer.  We  remember,  also, 
that  by  virtue  of  the  Place  Act  of  1707  (p.  96),  any  mem- 
ber of  the  House  of  Commons  who  accepts  even  one  of  the 
offices  of  State  created  before  1705,  must  resign  his  seat, 
though  he  may  seek  re-election.  And  it  may  be  useful  to 
add,  that  a  good  many  recently  created  offices,  such  as  those 
of  the  newer  Secretaries  of  State,  and  the  Presidents  of  the 
Local  Government  Board  and  the  Board  of  Education,  have 
been  placed  by  Act  of  Parliament  on  the  footing  of  "  old  " 


110  THE    IMPERIAL    CABINET 

offices  for  this  purpose ;  while  a  general  provision  of  the 
Representation  of  the  People  Act  of  1867  enacts,  that  the 
mere  transfer,  from  one  office  to  another  in  the  same  Minis- 
try, of  a  person  who  has  been  re-elected  since  his  appoint- 
ment to  his  former  office,  shall  not  involve  the  loss  of  his 
seat.^  Finally,  on  this  point  (though  perhaps  the  matter 
more  strictly  belongs  to  an  account  of  Parliament)  it  may  be 
explained,  that  the.  provision  of  the  Place  Act  alluded  to 
above  is  habitually  used  to  evade  the  rule  that  a  member  of 
the  House  of  Commons  cannot,  strictly  speaking,  resign  his 
seat.  Of  course  it  would  be  absurd  to  enforce  such  a  rule; 
for  an  unwilling  member  would  be  of  no  value,  either  to  the 
House  or  his  constituents.  When  a  member  wishes,  there- 
fore, to  resign,  he  applies  for,  and  is  given  as  a  course,  the 
office  of  "  Bailiff  of  the  Three  Hundreds  of  Chiltern,"  a 
Crown  office  with  a  nominal  salary  of  a  few  shillings,  which 
legally  disqualifies  him  from  sitting,  under  severe  penalties. 
He  then  resigns  this  nominal  office,  which  remains  ready  for 
the  next  member  who  wishes  to  resign  his  seat. 

The  Cabinet  and  the  Party  System 

(4)  As  previously  explained,  the  Cabinet's  majority  in 
the  House  of  Commons  is  maintained,  not  merely  by  the  elo- 
quence of  its  members  and  their  associated  Ministers,  but  by 
an  elaborate  party  organization  throughout  the  country 
(pp.  96-100).  It  is,  accordingly,  almost  an  independent 
rule  of  the  Cabinet  System  (though,  of  course,  purely  de- 
pendent on  custom  and  convenience)  that  all  the  members  of 
the  Ministry  shall  be  drawn  from  the  party  which  is  in  a 
majority  in  the  House  of  Commons,  and,  therefore,  presum- 
ably, in  the  country.  In  no  other  way,  in  ordinary  times, 
could  the  necessary  energy  and  united  action  be  forthcoming 
to  carry  through  the  "  programme  "  of  the  Government  in 
proposed  new  legislation.     This  is,  no  doubt,  the  reason  for 

*  To  be  quite  accurate,  mention  should  be  made  of  the  fact  that,  more  than 
once  during  the  great  war,  a  special  statute  was  passed  to  suspend  altogether 
the  provisions  of  the  Place  Act  in  specified  cases. 


THE    CABINET    AND    THE    PARTY    SYSTEM     111 

the  apparently  unreasonable  rule,  that,  when  any  proposal 
which  is  part  of  the  Government's  general  policy  is  defeated 
in  the  Commons,  the  Ministry  as  a  whole  resigns ;  for  such  a 
defeat  means,  of  course,  that  the  House  is  opposed  to  the 
party  policy.  In  states  having  "  fixed  Executives,"  i.e.  Min- 
istries which  do  not  depend  directly  on  the  support  of  the 
legislative  body,  such  as  the  United  States  of  America  and 
the  Swiss  Republic,  no  such  rule  prevails ;  Ministers  merely 
accept  their  defeat  and  try  to  do  better  next  time.  But  the 
rule  is  of  the  essence  of  "  Parliamentary  "  government ;  and 
it  holds  even  when,  owing  to  special  circumstances,  there  is  a 
"  Coalition  "  Ministry,  i.e.  a  Ministry  recruited  from  more 
than  one  party.  There  is,  however,  a  device  by  which  such 
an  extreme  step  may  be  avoided,  though  it  is  not  one  which 
Ministries  are  fond  of  using.  It  is  described  as  "  taking  off 
the  Government  Whips,"  i.e.  allowing  the  followers  of  the 
Government  to  vote  independently,  in  accordance  with  their 
own  personal  views,  on  a  particular  proposal,  which,  though 
nominally  made  by  the  Government,  is  one  to  which  the  Min- 
istry as  a  whole  is  indifferent.  The  "  Whips  "  are  members 
of  the  House  whose  business  it  is  to  keep  the  members  of  the 
party  together  by  the  judicious  distribution  of  patronage, 
social  favours,  politeness,  and,  if  necessary,  threats,  and  by 
the  collection  and  distribution  of  the  party  funds.  The 
"  Government  Whips  "  draw  salaries  from  the  Exchequer, 
being  usually  appointed  "  Junior  Lords  of  The  Treasury  " 
(p.  198)  ;  but  there  are  also  "  Opposition  Whips,"  belong- 
ing to  every  party  outside  the  Government,  who  are  either 
paid  out  of  the  party  funds,  or  do  their  somewhat  arduous 
work  from  motives  of  patriotism  or  hope  of  favours  to  come. 
It  is  only  in  Canada  that  the  unique  arrangement  prevails  of 
paying  the  Leader  of  the  Opposition  a  salary  out  of  the 
national  revenue.  This  apparently  illogical  arrangement  is, 
however,  a  practical  recognition  of  the  value  to  every  Gov- 
ernment of  systematic  and  independent,  but  responsible  criti- 
cism ;  and  the  existence  of  such  criticism  is,  undoubtedly,  one 
of  the  most  valuable  features  of  the  Party  System.     The 


112  THE    IMPERIAL    CABINET 

drawback  in  practice  to  it  is  not  so  much  (as  might  have  been 
feared)  its  effectiveness  in  weakening  the  hands  of  the  Gov- 
ernment, but  its  real  unwillingness  to  probe  into  abuses  by 
which  the  wielders  of  the  criticism  look  forward  to  profit 
when  their  turn  comes  to  obtain  office. 

Criticisms  of  the  Cabinet  System 

It  is  impossible  to  conclude  even  this  imperfect  account  of 
the  Cabinet  System  without  alluding,  however  briefly,  to  one 
of  the  more  serious  charges  which  have  been  brought  against 
it  in  recent  times  by  critics  who  have,  perhaps,  been  more 
keen  to  mark  defects  than  virtues.  It  is  said  that,  by  rea- 
son of  the  fact  that  the  Cabinet  combines  the  executive  power 
of  the  Crown  (Rule  1)  with  the  legislative  power  which  it 
exercises  as  commanding  a  majority  in  the  House  of  Com- 
mons (Rule  3),  it  is  in  fact  a  despotism,  which  is  inconsistent 
with  the  alleged  fundamental  rule  of  the  British  Constitution 
(so  eloquently  insisted  on  by  Montesquieu,  Delolme,  and 
other  foreign  admirers  of  that  Constitution),  that  the  execu- 
tive and  legislative  powers  of  the  State  should  be  kept  wholly 
distinct.  As  a  matter  of  fact,  it  is  very  doubtful  whether 
such  a  principle  ever  prevailed  in  practice  in  England;  and, 
if  it  did,  it  had  disappeared,  probably  before  Montesquieu's 
day,  certainly  before  Delolme's.  These  eminent  writers  were 
misled  by  the  forms  of  the  Constitution,  and  did  not  under- 
stand its  practical  working,  which  is  hardly  surprising,  as  no 
really  lucid  account  of  that  working  appeared  in  England 
itself  until  the  middle  of  the  nineteenth  century,  when  Bagehot 
wrote  his  admirable  book  on  "  The  English  Constitution." 
In  truth,  the  "  separation  of  powers,"  which  does  exist  in 
some  countries,  is  the  very  opposite  of  British  "  Parliamen- 
tary "  government,  as  understood,  not  merely  in  the  United 
Kingdom  but  in  the  self-governing  Dominions.  Nor  is  it 
right  to  assume,  as  is  too  often  done,  that  it  is  by  virtue  of 
its  position  as  Ministry  of  the  Crown  that  the  Cabinet  exer- 
cises its  great  power,  at  least  in  ordinary  times.  It  exercises 
that  power  because  its  leading  members  are  also  leading  mem- 


GOVERNMENT    AND    OPPOSITION  113 

bers  of  one  or  other  House  of  P'arliament,  and  especially  of 
the  House  of  Commons,  and  because,  in  that  capacity,  they 
can  induce  the  House  of  Commons  to  vote  any  amount  of 
money,  or  to  pass  any  legislation,  which  they  may  desire,  as 
well  as  to  give  any  amount  of  time  to  "  Government  busi- 
ness," and  thus,  practically,  to  extinguish  the  time  available 
for  the  legislative  projects  of  the  ordinary  unofficial  member 
("private  business").  They  therefore  wield,  for  the  time 
being,  the  supreme  power  of  the  United  Kingdom,  and,  sub- 
ject to  the  important  reservations  previously  explained 
(pp.  59,  60),  in  the  British  Empire.  But  they  hold  this 
power  on  a  precarious  tenure.  A  single  hostile  vote  of  the 
House  of  Commons,  which  may  be  given  at  any  moment, 
may  force  them  and  their  colleagues  to  resign,  subject  to  the 
possibility,  in  certain  circumstances,  also  previously  ex- 
plained (p.  33),  of  an  "  appeal  to  the  people  "  by  means  of 
a  General  Election.  If  the  Ministry  is  unsuccessful  in  that 
appeal,  its  fate  is  decided;  if  it  succeeds,  it  obtains  a  fresh 
"  mandate  "  or  lease  of  power,  which  is,  however,  thus  obvi- 
ously, in  the  last  resort,  derived  from  the  popular  will,  and 
held  at  its  pleasure.  Even  if  it  holds  the  House  of  Com- 
mons, the  Cabinet  has  to  face  periodical  General  Elections 
not  less  frequently  (in  ordinary  times)  than  every  five 
years  (p.  133)  ;  and  these,  though  they  do  not,  if  favourable, 
create  new  Ministries  (that  is  a  popular  error  for  which  the 
Press  is  to  blame),  yet  serve  to  remind  the  continuing  Minis- 
try that  it  derives  its  great  powers,  not  from  any  inherent 
or  permanent  authority,  but  from  that  ultimate  source  of 
power  in  every  true  democracy,  public  opinion. 

Merits  of  Party  System 

With  regard  to  the  wider  subject  of  the  merits  of  the 
Party  System  as  a  whole,  it  has  already  been  pointed  out 
(p.  97),  that  the  original  purpose  of  the  system  was  to 
secure  the  adoption  or  continuance  of  a  policy  which  its 
inventors  believed  to  be  vital  to  the  welfare  of  the  nation,  and 
that  its  effect  in  arousing  and  maintaining  a  healthy  interest 


114  THE    IMPERIAL    CABINET 

in  politics,  and  in  carrying  through  reforms  which  are  op- 
posed by  a  great  mass  of  selfish  prejudice  and  inertia,  re- 
mains its  primary  justification.  But  it  should  also  be 
pointed  out,  that  the  system  of  Party  Government  has  an- 
other and  indisputable  merit,  in  that  it  ensures,  in  ordinary 
times,  not  merely  (as  previously  indicated)  a  steady  and  or- 
ganized criticism  of  the  policy  of  the  Government,  which 
is  healthy  in  its  effects,  but  a  very  deliberate  and  thorough 
discussion  of  arguments  for  and  against  any  proposed  legis- 
lation. It  is,  indeed,  not  quite  certain  that  the  effect  of  the 
Party  System  on  legislation  has  not  been  unduly  to  delay 
many  desirable  measures ;  for  opposition  fostered  by  argu- 
ment and  organization  sometimes  strengthens  prejudice,  in- 
stead of  removing  it.  Still,  it  is  unquestionably  desirable, 
that  all  great  legislative  changes  should  be  preceded  by 
widely-spread  popular  discussion,  not  merely  to  prevent 
hasty  action,  but  to  enable  the  measures  in  question  to  sink 
into  the  popular  mind.  And  if  there  appears  to  be  danger 
of  undue  delay,  the  excellent  common  sense  of  the  British 
people  (which  has  been  fostered  by  this  long-established  habit 
of  party  discussion)  usually  proves  itself  able,  as  in  the 
notable  example  of  the  recent  Reform  Bill,  to  keep  party 
spirit  within  due  bounds. 

The  "Caucus" 

A  similarly  hopeful  view  may  be  taken  of  what,  a  genera- 
tion ago,  did  undoubtedly  appear  to  be  a  real  danger  of  the 
Party  System,  viz.  the  increasing  power  of  the  party  officials, 
or  "  caucus,"  in  the  management  of  political  business,  es- 
pecially in  the  distribution  of  patronage.  In  every  kind  of 
organization,  there  is  always  the  danger  that  the  man  will  be 
made  a  slave  of  the  machine,  and  that  the  natural  and,  in 
many  ways,  commendable  desire  for  efficiency  will  make  means 
of  more  importance  than  ends.  But  again,  the  sturdy  inde- 
pendence of  the  national  character  makes  it  unsuitable  mate- 
rial for  the  application  of  excessive  discipline;  and,  indeed, 
in  recent  years,  it  is  not  at  all  certain  that  the  habit  of  organ- 


WEAKNESS    OF    THE    PARTY    SYSTEM     115 

ization,  both  in  politics  and  other  matters,  has  not  been 
allowed  to  become  too  faint.  Moreover,  the  sudden  admis- 
sion of  a  very  large  number  of  women  voters  to  the  exercise 
of  the  franchise  may  be  expected  to  deliver  a  severe  shock  to 
the  Party  System,  which  will  effectually  prevent  it,  for  some 
years  at  least,  exercising  an  oppressive  influence. 

The  Party  System  and  Imperial,  Politics 

It  is  a  much  graver  charge  against  the  Party  System,  that 
it  accords  badly  with  the  wise  handling  of  the  great  Imperial 
problems  which  are  now  looming  before  British  statesmen. 
The  otherwise  regrettable  indifference  to  colonial  affairs 
which  characterized  the  past  century  has,  undoubtedly,  had 
one  redeeming  feature,  in  that  it  has  prevented  colonial  ques- 
tions becoming  entangled  in  a  system  which  was  devised  to 
deal  mainly,  if  not  exclusively,  with  the  internal  affairs  of 
the  United  Kingdom.  Almost  the  only  proposal  on  colonial 
subjects  which  has  ever  been  made  a  party  question  was  the 
proposal  for  separation ;  and  that  was,  happily,  laughed  out 
of  court  many  years  ago.  All  leading  statesmen  in  Great 
Britain  now  approach  Imperial  problems  in  a  grave  and  seri- 
ous spirit,  and  desire  to  take  full  advantage  of  the  wisdom 
and  co-operation  of  the  statesmen  of  the  Outer  Empire.  But 
it  is  a  grave  question  whether  the  old  machinery  which,  as  has 
been  said,  was  chiefly  devised  to  handle  internal  politics,  can 
be  adapted  to  the  wider  problems  of  Empire  —  in  plain 
words,  whether  the  British  House  of  Commons,  organized  on 
a  long  tradition  of  party  government,  can  adapt  itself,  even 
with  alterations  of  structure,  to  the  new  conditions,  or 
whether  a  new  Imperial  legislature  will  be  needed.  That  is 
why  it  is  so  very  difficult  to  say  whether  the  Imperial  Con- 
ference, held  at  irregular  intervals  since  the  year  1897,  under 
the  presidency  of  the  Prime  Minister  or  the  Secretary  of 
State  for  the  Colonies,  and  comprising  delegates  from  the 
self-governing  Dominions,  and,  on  the  most  recent  occasion, 
representatives  of  Indian  opinion,  ought  to  be  classed  as  an 
expansion  of  the  Imperial  Cabinet,  or  as  an  independent  insti- 


116  THE    IMPERIAL    CABINET 

tution  of  the  greatest  promise  and  value.  All  that  can  be 
said  at  present  is,  that  the  recent  decision  to  hold  regular 
annual  sessions  of  the  Conference,  and  to  make  its  composi- 
tion as  comprehensive  as  possible,  have  been  received  with 
profound  satisfaction  by  those  who  desire  the  growth  of  Im- 
perial unity,  and  that,  wliilst  it  is,  obviously,  impossible  for 
a  body  whose  members  are,  during  the  greater  part  of  the 
year,  scattered  over  the  surface  of  the  globe,  and  absorbed 
in  local  responsibilities,  to  exercise  direct  executive  authority, 
yet  the  resolutions  of  the  Conference  are  likely  to  exercise 
increasing  influence  on  the  policy  of  the  Imperial  Cabinet. 


CHAPTER    VI 

THE  IMPERIAL  PARLIAMENT  (STRUCTURE) 

It  is  extremely  difficult  to  know  where,  at  the  present  day, 
a  description  of  the  Parliament  at  Westminster  should  ap- 
pear in  an  account  of  the  Government  of  the  British  Empire. 
Writers  who  lived  half  a  century  ago,  when  the  belief  in  Par- 
liamentary institutions  was  at  its  height,  and  the  Parliament 
at  Westminster  was  regarded  with  almost  superstitious  ven- 
eration, were  accustomed  to  treat  Parliament  as  the  supreme, 
if  not  the  sole,  source  of  power  in  the  Empire.  But  the  rapid 
growth  of  Dominion  self-government  since  that  date,  as  well 
as  the  growing  tendency  of  Parliament  itself  to  leave  many 
of  its  nominal  duties  in  the  hands  of  the  Cabinet  or  individual 
Ministers,  have  greatly  altered  the  position.  We  know  that, 
as  a  matter  of  fact,  only  a  comparatively  small  part  of  the 
vast  business  of  government  comes  directly  before  Parlia- 
ment, and  that  most  of  that  is  business  which  immediately 
concerns  the  United  Kingdom  only.  This  is  natural;  for, 
in  spite  of  its  Imperial  claims,  the  Parliament  at  Westmin- 
ster is,  in  origin  and  constitution,  a  product  of  the  United 
Kingdom  alone ;  and  it  cannot  shake  off  the  limitations  of  its 
origin.  Not  until  the  self-governing  Dominions,  at  least, 
send  elected  representatives  to  the  seat  of  Empire,  will  there 
be  a  true  Imperial  Parliament;  and  the  difficulties  of  space 
and  time,  to  say  nothing  of  other  difficulties,  make  such  a 
step  unlikely  for  the  present.  Meanwhile,  the  Parliament  at 
Westminster  claims  to  exercise,  in  co-operation  with  the 
King,  the  supreme  control,  direct  and  indirect,  over  the  whole 
of  the  Empire,  and,  by  virtue  of  that  claim,  must  be  treated 
as  an  Imperial  institution. 

The  history  of  Parliament  need  not  further  detain  us. 


118  THE    IMPERIAL    PARLIAMENT 

We  have  seen  (p.  25)  that  it  originated  in  England  in  the 
thirteenth  century,  as  a  measure  devised  by  the  Crown  and  its 
Ministers  to  strengthen  the  royal  power  by  the  grant  of 
taxes,  that  it  rapidly  became  a  centre  for  the  discussion  of 
grievances  and  the  promotion  of  legislation,  that  it  more 
gradually  acquired  the  right  to  criticise,  and,  ultimately,  to 
control  the  policy  of  the  Crown,  that,  finally,  by  the  growth 
of  the  Cabinet  System,  it  succeeded,  not  merely  in  control- 
ling, but,  to  a  certain  extent,  in  shaping  that  policy,  and  ap- 
pointing means  for  its  execution.  We  proceed  now  to  explain 
the  structure  and  working  of  Parliament  itself. 

The  "Houses" 

It  is  commonly  said,  that  Parliament  consists  of  two 
Houses ;  and  that  is  practically  true.  But  the  well-known 
expression,  the  "  Three  Estates  of  the  Realm,"  should  remind 
us  that  Parliament  once  consisted  of  three  parts,  viz.  Lords, 
lay  Commons,  and  spiritual  or  clerical  Commons. 

The  House  of  Clergy 

The  latter  consisted  of  the  dean  or  prior,  and  one  "  proc- 
tor "  (or  agent)  chosen  by  the  clergy  of  each  cathedral 
'*  chapter  "  or  governing  body,  and  the  archdeacons  and  two 
proctors  chosen  by  the  parochial  clergy  of  each  diocese,  who 
were  summoned,  through  the  so-called  "  Praemunientes  " 
clause  in  the  writs  of  summons  sent  by  the  King  to  the 
bishops,  to  attend  the  meetings  of  Parliament.  With  that 
strong  conservatism  which  marks  all  British  institutions,  this 
clause  is  still  inserted  in  the  writs  to  the  bishops  sent  at  the 
summoning  of  each  Parliament ;  but  it  has  long  ceased  to 
have  any  meaning.  For,  though  Edward  I  was  determined  to 
compel  the  attendance  of  the  clerical  representatives,  in  order 
that  the  clergy  might  not  be  able  afterwards  to  object  to 
pay  taxes  on  the  ground  that  they  had  not  consented  to 
them,  he,  probably,  did  not  really  desire  the  ordinary  clergy 
to  take  any  part  in  the  general  business  of  Parliament,  while 
the    clerical    representatives    equally    had    no    such    desire. 


THE    TWO    HOUSES  119 

Accordingly,  even  before  Parliament  had  separated  into 
"  Houses,"  the  clerical  Commons  ceased  to  be  an  effective 
part  of  Parliament,  merely  putting  in  an  appearance  to  hear 
the  King's  speech  at  the  opening  of  the  session,  and  then 
departing  to  hold  their  own  "  Convocations  "  or  Parliaments, 
at  the  neighbouring  Chapter  House  of  St.  Paul's  Cathedral 
or  elsewhere.  Thence  they  were  summoned,  at  the  close  of 
the  session,  to  give  a  formal  assent  to  the  taxes  granted  by 
the  lay  Parliament,  to  which  they  had  to  contribute.  Even 
this  formality  was  abandoned  at  the  Restoration  of 
Charles  II,  when,  by  an  agreement  between  Lord  Clarendon, 
the  Chancellor,  and  Dr.  Sheldon,  the  Archbishop  of  Canter- 
bury, afterwards  recognized  by  statute,  it  was  settled,  that, 
instead  of  giving  this  formal  consent  through  Convocation, 
the  beneficed  clergy  should  vote  as  freeholders,  at  the  election 
of  members  of  the  House  of  Commons  in  their  own  counties, 
and  be  taxed  on  the  value  of  their  benefices.  A  curious  result 
of  this  irregular  proceeding  appeared  in  the  year  1801,  when 
Mr.  Home  Tooke,  a  clergyman,  succeeded  in  being  elected 
a  member  of  the  House  of  Commons,  and  taking  his  seat,  on 
the  ground  that  he  was  no  longer  represented,  as  a  clergy- 
man, in  the  clerical  House.  But  this  contention,  logical  as 
it  was,  was  soon  afterwards  overruled,  by  the  Act  which  dis- 
qualifies any  clergyman  of  the  Church  of  England,  and  any 
Catholic  priest,  from  sitting  in  the  House  of  Commons. 

Separation  of  Lay  Houses 

Very  soon,  however,  after  the  definite  establishment  of  Par- 
liament, the  working  members  divided  themselves  into  two 
Houses,  the  Lords  and  the  Commons ;  and  this  division  has 
ever  since  continued.  This  separation  was  so  natural  and 
unconscious,  that  no  formal  account  of  it  survives;  and  it  is 
difficult,  owing  to  the  state  of  the  early  Parliamentary  rec- 
ords, to  decide  exactly  when  it  took  place.  We  are,  how- 
ever, justified  in  believing  that  it  was  before  Parliament  was 
fifty  years  old.  It  was  natural  that  the  elected  members  for 
the  shires  and  boroughs  should  withdraw  themselves  from  the 


120  THE    IMPERIAL    PARLIAMENT 

great  nobles,  lay  and  clerical,  who  received  personal  writs 
of  summons  from  the  King,  and  in  whose  presence  they  could 
hardly  discuss  with  freedom  the  grievances  of  humbler  folk. 
But  what  was  not  so  natural,  and  yet  was  vitally  important, 
was,  that  the  Knights  of  the  Shire,  the  natural  leaders  at  that 
time  of  the  Commons,  did  not  separate  themselves,  as  in  some 
other  countries,  from  the  members  for  the  cities  and  bor- 
oughs, but  united  with  them  to  form  a  single  "  estate  of  the 
realm,"  represented  by  a  single  House  of  Commons,  which, 
as  the  growing  wealth  of  the  boroughs  supplemented  the 
skill  and  authority  of  the  Knights  of  the  Shire,  soon  learned 
to  hold  its  own  both  against  the  Crown  and  the  Lords.  By 
this  separation  into  two  Houses,  it  will  be  observed,  it  became 
impossible  for  the  Crown  to  secure  a  majority  in  Parliament 
by  the  simple  process  of  summoning  more  peers ;  because  the 
consent  of  each  House  separately  had  to  be  obtained  for  all 
measures.  We  proceed,  therefore,  to  examine  the  composi- 
tion of  each  House,  before  dealing  with  the  work  of  Parlia- 
ment as  a  whole. 

Hereditary  Peers 

The  House  of  Lords  consists  mainly  of  hereditary  peers 
of  various  degrees  —  dukes,  marquises,  earls,  viscounts,  and 
barons ;  that  is,  peers  whose  ancestors  were  also  members  of 
the  House,  or  whose  descendants  will  be  in  due  course.  There 
is  no  legal  limit  on  the  power  of  the  Crown  to  create  such 
peerages ;  and  they  are  frequently  conferred  for  political, 
military,  and  other  services.  But  it  seems  to  have  been  de- 
cided in  the  seventeenth  century  (though  the  point  is  not 
very  clear),  that  the  Crown  could  not  refuse  a  summons  to 
the  House  of  Lords  to  any  man  who  was  the  male  heir,  ac- 
cording to  the  feudal  rules  of  descent,  of  his  ancestor  who 
had  received  a  summons,  and  had  actually  taken  his  seat; 
and  this  rule  is  in  force  at  the  present  day.  It  should  be  re- 
membered, however,  that  the  feudal  rules  of  descent  limit  the 
inheritance  to  the  eldest  among  the  males  of  equal  degree 
("primogeniture");  while  women  cannot  sit  in  the  House 


NON-HEREDITARY    PEERS  121 

of  Lords.  It  follows,  therefore,  that  there  can  be  only  one 
holder  of  each  peerage  in  Parliament  at  the  same  time;  and 
indeed,  when  a  peerage  descends  on  co-heiresses,  not  only  the 
seat  in  Parliament,  but  the  peerage  itself,  is  "  in  abeyance," 
until  the  Crown  chooses  to  select  which  of  them  shall  bear  the 
title.  Moreover,  when  a  peerage  is  created  by  Letters 
Patent,  as  it  now  invariably  is,  the  grant  may  restrict  the 
descent  not  merely  to  males,  but  to  males  in  the  direct  line  of 
heirship  from  the  original  holder  of  the  peerage.  But  it  was, 
unfortunately,  also  decided,  so  late  as  the  year  1856,  that 
the  Crown,  though  it  might  create  peerages  for  life,  could 
not  of  itself  confer  upon  life  peers  the  right  to  sit  in  the 
House  of  Lords.  And  Lord  Wensleydale,  who  had  been 
so  created,  was  not  allowed  to  take  his  seat.  At  present  the 
number  of  hereditary  peers  in  the  House  of  Lords  is  about 
600.  Only  peers  of  Great  Britain  or  the  United  Kingdom 
(as  distinguished  from  Scottish  and  Irish  peers)  have,  as 
such,  a  right  to  seats. 

Life  and  Representative  Peers 

By  far  the  smaller  part  of  the  House  of  Lords  consists  of 
peers  whose  seats  are  held  only  for  life,  or,  in  some  cases,  for 
even  shorter  periods.    They  may  be  divided  into  four  classes. 

Prelates 

(1)  The  oldest  is  that  of  the  English  prelates.  From  the 
earliest  times,  the  archbishops  and  bishops  of  England  sat 
in  the  great  councils  of  the  realm,  even  in  the  old  English 
Witans.  Naturally  they  formed  part  of  the  earliest  Parlia- 
ments, the  centre  of  which  was  the  Council  of  Magnates  of 
the  Norman  and  Plantagenet  reigns,  of  which  they  had  also 
been  members.  Along  with  them  sat  the  "  mitred  abbots,"  or 
heads  of  the  greater  ecclesiastical  monasteries.  Down  to  the 
Reformation,  especially  after  the  slaughter  of  the  lay  nobles 
in  the  Wars  of  the  Roses,  these  clerical  peers  even  outnum- 
bered the  lay  peers  ;  but  the  mitred  abbots  disappeared  at  the 
Reformation,  when  the  monasteries  were  suppressed,  and  the 


122  THE    IMPERIAL    PARLIAMENT 

number  of  lay  peers  was  gradually  increased  by  the  creation 
of  new  peerages,  whilst,  after  the  sixteenth  century,  no  new 
bishoprics  were  created  for  two  hundred  years.  Further, 
when,  in  the  nineteenth  century,  the  creation  of  new  bishop- 
rics became  common,  it  was  provided  that  an  increase  in 
their  number  should  not  increase  the  number  of  episcopal 
peers  in  Parliament.  The  two  archbishops,  and  the  bishops 
of  Winchester,  London,  and  Durham,  have  seats  as  of  right ; 
the  remaining  twenty-one  episcopal  seats  being  occupied  by 
the  other  diocesan  bishops  according  to  the  seniority  of 
their  election  to  their  episcopal  office.  The  "  suffragan  "  or 
assistant  bishops  (p.  297)  do  not  sit  in  the  House  of  Lords; 
and  the  four  Irish  bishops  who  sat  from  the  Union  of  1800 
(p.  51),  by  a  system  of  rotation,  disappeared  on  the  dises- 
tablishment of  the  Irish  Church  in  1869,  as  will  the  Welsh 
bishops  on  the  coming  into  effect  of  the  Welsh  Church  Act 
of  1914  (p.  45).  As  has  been  before  remarked  (p.  47), 
there  never  have  been  any  Scottish  bishops,  as  such,  in  the 
House  of  Lords ;  though  there  is  nothing  to  prevent  any 
clergyman,  of  whatever  denomination,  who  holds  a  peerage 
of  the  United  Kingdom,  from  sitting  as  an  hereditary  peer. 
A  recent  heir  of  the  great  Admiral  Nelson  long  so  sat. 

Scottish  Peers 

(2)  The  second  class,  in  order  of  date,  of  non-hereditary 
seats  in  the  House  of  Lords  is  occupied  by  the  Scottish  repre- 
sentative peers.  By  the  Scottish  Act  of  Union  (p.  46),  six- 
teen peers  of  Scotland  are  to  be  chosen  for  each  Parliament 
by  their  fellow  peers  of  Scotland;  and  the  picturesque  and 
ancient  solemnity  takes  place  at  the  Royal  Palace  of  Holy- 
rood  at  the  summoning  of  each  new  Parliament.  A  Scottish 
peer  who  holds  also  a  peerage  of  the  United  Kingdom  cannot 
vote  at  such  an  election,  or  sit  as  a  Scottish  Representative 
Peer;  though  he  may  sit  as  an  hereditary  peer  by  virtue  of 
his  United  Kingdom  peerage.  As  the  acquisition  of  such 
latter  peerages  by  Scottish  peers  is  not  infrequent,  and  as 
the  Crown  is  expressly  prohibited  by  the  Act  of  Union  from 


LIFE    PEERS  123 

creating  new  Scottish  peerages,  it  seems  not  unlikely  that,  at 
no  very  distant  date,  the  sixteenth  Scottish  RepresentatiA^e 
Peers  will  elect  one  another,  in  default  of  other  electors,  or 
even  be  unable  to  keep  up  their  full  numbers.  Meanwhile,  a 
non-representative  Scottish  peer  enjo3^s  all  the  privileges  of 
a  peer  of  the  United  Kingdom  other  than  those  connected 
with  a  seat  in  Parliament,  and  is  under  the  same  disabilities. 
For  example,  he  cannot  be  elected  a  member  of  the  House  of 
Commons,  or  vote  at  Such  an  election. 

Irish  Peers 

(3)  The  third  class  of  non-hereditary  seats  in  the  House 
of  Lords  is  that  occupied  by  the  twenty-eight  Irish  Repre- 
sentative Peers.  These  are,  like  their  Scottish  colleagues, 
elected  by  their  fellow  peers  of  Ireland;  but,  unlike  them, 
they  are  chosen  for  life,  and  an  election  only  takes  place  when 
a  vacancy  occurs  by  death  or  "  attainder,"  i.e.  conviction  for 
treason  or  felony.  For  it  is  said  that  an  Irish  peer  cannot 
refuse  election  (at  least  if  he  is  resident  in  Ireland),  and  that 
he  cannot  resign  his  seat.  It  is  also  said,  that  an  Irish  Rep- 
resentative Peer  who  acquires  a  peerage  of  the  United  King- 
dom does  not  thereby  cease  to  be  a  Representative  Peer ;  and, 
as  the  Crown  is  expressly  authorized  to  keep  up  the  number 
of  Irish  peerages  to  one  hundred  by  new  creations,  there 
seems  to  be  no  prospect  of  a  lack  of  electors  to  Irish  repre- 
sentative peerages,  so  long  as  the  latter  exist.  Another  dif- 
ference between  the  cases  of  Scotland  and  Ireland  is,  that  an 
Irish  peer  (not  having  a  seat  in  the  House  of  Lords)  may 
be  elected  to  the  House  of  Commons  for  a  constituency  in 
Great  Britain.  Lord  Palmerston  was  a  conspicuous  example 
of  this  rule.  A  non-representative  Irish  peer  enjoys  also  the 
other  privileges,  and  is  subject  to  the  other  disabilities,  of  a 
peer  of  the  United  Kingdom. 

Lords  of  Appeal 

(4)  The  last  and  most  modern  class  of  non-hereditary 
peers  are  the  "  Lords  of  Appeal  in  Ordinary."     It  has  long 


124  THE    IMPERIAL    PARLIAMENT 

been  customary  to  bestow  hereditary  peerages  on  the  holders 
of  the  highest  legal  offices,  such  as  the  Lord  Chancellorship 
of  Great  Britain  and  the  Chief  Justiceship  of  England.  But, 
as  we  shall  later  see  (p.  268),  the  House  of  Lords  acts  as 
the  highest  court  of  appeal  from  the  ordinary  law  courts  of 
the  United  Kingdom ;  and  it  is  desirable  that,  on  such  occa- 
sions, it  should  be  strengthened  by  the  presence  of  other 
lawyers  of  eminence,  less  engaged  with  other  affairs  which 
occupy  the  Lord  Chancellor  and  the  Chief  Justice.  This  was, 
in  fact,  the  motive  for  the  life  peerage  bestowed  on  Lord 
Wensleydale  (p.  121)  ;  and  when  the  intended  purpose  was 
frustrated  by  the  action  of  the  House  of  Lords  itself,  it  be- 
came necessary  for  the  Crown  to  obtain  powers  to  carry  it 
out.  Accordingly,  on  the  great  re-settlement  of  the  judicial 
system  which  took  place  in  1875-6,  the  Crown  was  em- 
powered to  create  not  more  than  four  (since  increased  to 
six)  judges  or  barristers  of  experience.  Lords  of  Appeal  in 
Ordinary,  as  barons  with  seats  in  the  House  of  Lords ;  and 
it  was  understood  that  these  legal  peers  should  also  take  a 
substantial  part  in  the  sittings  of  the  supreme  Imperial  tri- 
bunal of  appeal,  the  Judicial  Committee  of  the  Privy  Coun- 
cil (p.  269).  By  an  amending  Act  of  Parliament,  these 
"  Law  Lords  "  do  not  vacate  their  seats  in  the  House  of 
Lords  on  resigning  their  offices ;  and  their  children  are,  like 
the  children  of  hereditary  barons,  entitled  to  prefix  the  word 
"  Honourable  "  to  their  names. 

House  of  Commons 

The  House  of  Commons,  though  more  uniform  than  the 
House  of  Lords,  because  it  is  composed  entirely  of  "  repre- 
sentatives," i.e.  persons  elected  by  others,  known  as  their 
"  constituents,"  to  scats  in  the  House,  and  liable  to  lose  them 
if  they  are  not  periodically  re-elected,  is  not  entirely  uniform 
in  character. 

In  the  first  place,  there  are  two,  or,  to  be  strict,  three,  dif- 
ferent kinds  of  constituencies,  or  groups  of  electors,  which 
send  members  to  the  House  of  Commons.     From  the  earliest 


THE    COUNTY    MEMBERS  125 

days  of  Parliament,  as  has  been  said  (p.  25),  "Knights  of 
the  Shire  "  on  the  one  hand,  and  "  citizens  and  burgesses  " 
on  the  other,  were  summoned  through  the  sheriffs. 

County  Constituencies 

The  shire,  or  county,  is  an  ancient  institution  of  great  im- 
portance, accustomed  to  act  as  a  whole  for  military,  police, 
and  judicial  purposes. 

It  will  be  possible,  in  a  later  chapter,  to  say  something  of 
its  history  and  present  uses ;  here  it  is  sufficient  to  note  that, 
during  the  long  period  from  the  definite  appearance  of  Par- 
liament in  1295  to  the  passing  of  the  great  Refonn  Bill  of 
1832,  if  we  make  allowance  for  the  interesting,  but  brief,  ap- 
pearance of  Cromwell's  reformed  Parliaments,  each  ordinary 
shire,  great  or  small,  in  England,  sent  two  members  to  each 
Parliament,  while,  as  has  been  mentioned  (p.  45)  on  the  defi- 
nite union  of  England  and  Wales  in  1536,  the  Welsh  counties 
were  given  one  member  each.  The  "  Palatine  "  counties  of 
Lancaster,  Chester,  and  Durham,  which  had  their  own  pe- 
culiar governments  under  the  Dukes  and  Earls  of  Lancaster, 
the  Earls  of  Chester,  and  the  Prince  Bishops  of  Durham,  did 
not  send  members  until  comparatively  recent  times ;  and  Mon- 
mouth, as  before  pointed  out  (p.  45),  did  not  become  a 
county  till  1536.  Thus,  the  county  members  grew  from  72 
to  86,  and  from  86  to  92 ;  but  there  they  remained  fixed,  in 
spite  of  the  growth  of  their  constituencies,  and  the  sugges- 
tions made  from  time  to  time  for  their  increase,  until  the  first 
Reform  Act  of  1832.  They  were  the  back-bone  of  the  House 
of  Commons  in  the  days  of  its  infancy  and  stormy  manhood. 
They  braved  the  great  and  haughty  Queen  Elizabeth,  and  the 
crafty  James;  they  raised  the  banner  of  defiance,  under 
Hampden,  Pym,  Eliot,  and  Coke,  against  Charles  I ;  they  re- 
sisted the  flood  of  corruption  which,  from  the  easy-going 
days  of  Charles  II  to  the  times  when  Indian  "  Nabobs  "  re- 
turned from  the  East  to  spend  their  hastily  acquired  wealth 
in  England,  threatened  to  overwhelm  the  independence  of  the 
House. 


126  THE    IMPERIAL    PARLIAMENT 

"  Knights  of  the  Shire  " 

At  first,  as  their  name  implies,  they  were  "  belted  knights," 
i.e.  landowners  of  the  degree  of  knighthood ;  and,  though  this 
strict  requirement  was  abandoned  very  early  in  the  history 
of  Parliament  (1413),  they  were  required  to  be  resident  in 
the  counties  which  they  represented;  and  this  rule  was  not 
formally  abolished  till  1774.  For  about  a  century  and  a 
half,  from  1710  to  1858,  county  members  required  the  prop- 
erty qualification  of  £600  a  year,  in  possession  or  expect- 
ancy, arising  from  the  ownership  of  land;  and  there  was  a 
curious  tradition,  arising  from  an  old  Act  of  Parliament, 
that  no  lawyer  could  be  a  county  member.  Both  these  re- 
quirements have  now  disappeared;  and,  from  the  beginning 
of  modern  Parliamentary  reform  in  1832,  each  new  Reform 
Act  has  made  an  increase  in  the  number  of  county  constitu- 
encies, by  dividing  the  larger  counties  into  "  divisions," 
each  returning  a  single  member  to  Parliament.  The  number 
of  these  divisions  is  now  377. 

Borough  Constituencies 

The  history  of  the  Parliamentary  "  cities  and  boroughs  " 
(there  is  no  legal  distinction  between  these)  is  much  less  satis- 
factory. Apparently,  for  the  first  two  centuries  of  Par- 
liament, the  Crown  used  to  summon  the  representatives  of 
boroughs  selected  at  random ;  though,  naturally,  certain  im- 
portant towns,  like  London,  Winchester,  York,  and  others, 
were  always  represented.  There  is  a  theory,  though  it  is  not 
yet  proved,  that  only  boroughs  directly  "  in  the  King's  hand," 
or  "  on  the  royal  demesnes,"  i.e.  boroughs  which  paid  their 
taxes  (or"  ferm  ")  direct  to  the  Exchequer,  were  included; 
and  we  must  always  be  careful  to  remember  that,  for  at  least  a 
century  after  1295,  the  burgesses  of  a  borough  were  most 
unwilling  to  be  represented,  partly  because  they  had  to  pay 
the  wages  of  their  representatives,  still  more  because  they  had 
to  pay  higher  taxes  than  the  unrepresented  boroughs.  It 
was  not  until  the  end  of  the  fifteenth  century,  that  representa- 


THE  BOROUGH  MEMBERS       127 

tion  in  Parliament  began  to  be  regarded  as  a  privilege,  and 
that  a  borough  used  to  petition  for  the  insertion  in  its  "  char- 
ter," or  grant  of  privileges,  of  the  right  of  Parliamentary 
representation.  The  little  borough  of  Much  Wenlock  in 
Shropshire  is  said  to  have  been  the  first,  or  one  of  the  first, 
to  secure  this  grant,  in  the  reign  of  Edward  IV.  Unfor- 
tunately, the  Crown's  advisers  took  advantage  of  this  grow- 
ing desire,  and,  during  the  sixteenth  century,  began  to  induce 
the  Crown  to  make  grants  of  Parliamentary  representation 
to  little  towns,  of  no  real  importance,  which  happened  to  be 
specially  under  Crown  influence,  e.g.  towns  or  even  villages 
in  the  royal  Duchies  of  Cornwall  and  Lancaster. 

"  Rotten  Boroughs  " 

This  was  the  beginning  of  the  system  of  "  rotten  "  or  cor- 
rupt boroughs,  which  was  the  great  political  scandal  of  the 
eighteenth  century.  For,  though  the  great  changes  in  com- 
merce brought  about  by  the  discoveries  of  new  trade  routes, 
in  the  sixteenth  and  seventeenth  centuries,  made  some  for- 
merly insignificant  villages  into  great  towns,  and  some  for- 
merly important  towns  into  mere  villages,  the  right  of  send- 
ing members  to  Parliament  remained  nominally  with  the 
latter,  but  was  really  bought  up  by  rich  and  powerful  neigh- 
bouring landowners,  who  treated  these  constituencies  as 
"  pocket  "  boroughs,  i.e.  seats  to  which  they  could  nominate 
any  one  whom  they  pleased,  with  a  certainty  that  the  nomi- 
nal electors,  often  only  a  mere  handful  in  number,  would 
vote  as  they  were  told.  There  is  even  a  well-authenticated 
story  to  the  effect  that  the  Mayor  and  Aldermen  of  a  famous 
borough,  having  been  committed  to  prison  by  the  House  of 
Commons  for  corruptly  procuring  the  return  of  a  member, 
actually  sold  the  "  next  presentation  "  whilst  in  prison,  to 
a  neighbouring  landowner. 


128  THE    IMPERIAL    PARLIAMENT 

The  First  Reform  Act 

This  scandalous  state  of  things,  which  was,  of  course, 
maintained  in  order  that  the  Crown's  Ministers  and  the  great 
landowners  might  destroy  the  independence  of  the  House  of 
Commons  by  influencing  the  votes  of  the  borough  members 
(who  were  far  more  numerous  than  the  county  members), 
was  at  last  put  an  end  to  by  the  great  Reform  Act  of  1832, 
which  abolished  no  less  than  fifty-six  of  the  "  rotten  "  bor- 
oughs, and  took  away  one  member  each  from  thirty  more, 
adding  sixty-five  of  the  seats  thus  abolished  to  the  county 
divisions,  and  transferring  sixty-five  more  to  new  and  im- 
portant towns  previously  unrepresented.  This  policy  was 
further  extended  by  the  Reform  Acts  of  1867  and  1885, 
till  to-day,  with  the  great  increase  in  the  number  of  county 
divisions  and  of  new  Parliamentary  "  boroughs  "  in  popu- 
lous districts  which  have  never  been  boroughs  in  the  true 
sense  at  all  —  e.g.  the  vast  suburbs  of  London,  there  is 
scarcely  any  apparent  difference  in  character  between  a 
county  and  a  borough  constituency,  except  that  elections  are 
still  conducted  in  the  former  by  the  sheriff,  while,  in  the  lat- 
ter, the  mayor  is  the  returning  officer. 

The  course  of  procedure  in  Scotland  and  Ireland,  since  the 
respective  Unions  of  1707  and  1800  (pp.  46,  51)  has  been, 
broadly  speaking,  the  same  as  in  England  in  the  matter  of 
Parliamentary  constituencies.  But  there  have  been  slight 
differences.  Altogether  there  are  now  670  members  of  the 
House  of  Commons,  of  whom  377  represent  county  divi- 
sions, 284  are  elected  for  boroughs,  and  9  by  university 
constituencies. 

The  Ancient  "  Forty  Shilmng  Franchise  " 

Equally  important  were,  and,  to  a  certain  extent  are 
still,  the  differences  between  the  counties  and  the  boroughs  in 
the  matter  of  the  "  franchise,"  or  right  to  vote  at  Parlia- 
mentary elections.  After  a  short  period  of  uncertainty,  the 
county  franchise  was  confined  by  Act  of  Parliament  to  resi- 


THE    "FRANCHISE"  129 

dent  owners  of  "  free  tenements  to  the  value  of  forty  shillings 
by  the  year  at  the  least  above  all  charges  " ;  which  expression 
was  legallj^  construed  to  mean  persons  owning  freehold  es- 
tates worth  forty  shillings  a  year.  This  sum  represented, 
in  the  first  half  of  the  fifteenth  century,  when  the  statute  was 
passed,  a  purchasing  power  equivalent  to  at  least  ten  times 
the  amount  at  the  present  day;  and  the  county  electors  of 
that  time  must  have  been  substantial  yeomen,  not  readily 
open  to  intimidation  or  bribery.  But  the  rapid  fall  in  the 
value  of  money  which  took  place  in  the  sixteenth  century, 
owing  to  the  discovery  of  the  silver  mines  of  South  America, 
gradually  converted  the  "  forty  shilling  freehold "  into  a 
merely  nominal  qualification,  especially  as  the  holder  might 
be  a  life  tenant  only.  Accordingly,  in  the  bad  days  of  the 
eighteenth  and  early  nineteenth  centuries,  wealthy  landowners 
created  "  faggot  "  votes,  by  making  grants  of  small  patches 
of  land  for  life  to  their  servants  and  dependents,  on  the  under- 
standing that  they  should  use  the  votes  thus  obtained  in 
accordance  with  the  donor's  wishes. 

Modern  County  Franchises 

This  practice  was  checked,  though  not  entirely  extin- 
guished, by  the  Reform  Act  of  1832,  which  rendered  it  of 
less  consequence,  by  making  copyhold  and  leasehold  owner- 
ship of  substantial  value,  and  even  a  short  tenancy  at  a  sub- 
stantial rent  (the  famous  "  Chandos  "  clause)  a  qualification ; 
while  the  Acts  of  1867,  which  give  the  county  franchise  to 
all  occupiers  ^  of  land  worth  twelve  pounds  a  year,  and  the 
Act  of  1884,  which  conferred  the  residential  and  lodger  fran- 
chises on  the  counties,  rendered  it  still  less  important.  It  is 
one  of  the  quaint  stories  of  political  history,  that  Richard 
Cobden,  the  political  and  economic  reformer,  long  believed, 
and  stated  in  his  public  speeches,  that  the  "  forty  shilling 
franchise  "  was  a  democratic  novelty  created  by  the  Reform 

^  The  reader  must  be  careful  to  distinguish  "occupation,"  which  merely 
means  having  exclusive  possession,  from  "residence,"  which  involves  actual 
dwelling.    A  man  "occupies"  his  shop  or  office;  he  resides  in  his  house. 


130  THE    IMPERIAL    PARLIAMENT 

Act  of  1832,  instead  of  an  aristocratic  privilege  set  up  in 
1430. 

The  Ancient  Borough  Franchises 

Unlike  the  county  franchise,  the  old  borough  franchise 
was  obscure,  irregular,  and  confused.  There  was  never  any 
uniform  borough  franchise  throughout  the  kingdom  till 
1832;  but,  in  each  borough  the  persons  who  enjoyed  the 
privileges  of  self-government,  according  to  the  charter  or 
traditions  of  the  borough,  alone  exercised  the  Parliamentary 
franchise.  Thus,  in  one  borough,  the  vote  would  be  exer- 
ciseable  only  by  the  occupants  of  certain  ancient  tenements, 
or  "  potwallopers  "  ("  potboilers  ")  ;  in  another  only  by  the 
members  of  certain  craft  gilds  or  industrial  associations ;  in 
another,  only  by  the  members  of  the  leet  jury  or  court  — 
for  these  alone  were  "  burgesses  "  in  the  strict  sense.  The 
natural  result  was  the  disgraceful  orgy  of  corruption  and 
intimidation  before  described  (p.  127). 

Modern  Borough  Franchises 

The  Reform  Act  of  1832  made  an  almost  clean  sweep  of 
these  anomalies,  and  set  up  in  their  place  a  unifonn  borough 
franchise  which  could  be  claimed  by  all  persons  occupying 
land  or  houses  of  the  annual  value  of  ten  pounds,  within  the 
borough,  while  the  Act  of  1867  added  the  residential  and 
lodger  franchises ;  so  that,  from  that  year,  in  the  boroughs 
at  least,  practically  every  permanent  male  resident  who  was 
the  head  of  a  household,  an  independent  business  man,  or  even 
a  lodger  of  fair  social  position,  has  been  entitled  to  a  Parlia- 
mentary vote.  The  history  of  the  franchise  in  Scotland  and 
Ireland,  though  by  no  means  exactly  the  same  as  that  of 
England,  has,  on  the  whole,  followed  similar  lines ;  and,  since 
1884,  the  franchise  in  the  three  countries  of  the  United  King- 
dom has  been  substantially  the  same. 

But,  of  course,  the  most  sweeping  changes  ever  made  in 
the  Parliamentary  franchise  are  those  proposed  by  the  Re- 
form Bill  of  the  present  year  (1917),  which  will  not  only 


MODERN    PARLIAMENTARY    FRANCHISES     131 

make  a  vast  increase  In  the  number  of  electors,  by  conferring 
on  women  as  well  as  on  men  the  right  to  vote,  but  will  remove 
many  of  the  old  abuses  and  difficulties  which  rendered  the 
vote  of  the  average  elector  liable  to  be  withheld,  or  made  it 
valueless  when  it  was  given.  By  that  Bill,  which  has  every 
prospect  of  passing  into  law,  there  will  be,  apart  from  uni- 
versity constituencies,  only  two  possible  qualifications  for  the 
Parliamentary  vote,  viz.  residence,  and  occupation  of  "  land 
or  premises."  Any  man  who  has  resided  for  a  brief  period 
in  a  constituency  (county  or  borough),  or  has  occupied^ 
business  premises  therein  of  the  annual  value  of  ten  pounds, 
will  be  entitled  to  be  placed  on  the  register  of  voters;  while 
any  woman  of  the  age  of  thirty  years,  who,  or  whose  husband, 
is  entitled  to  be  put  on  the  local  government  register  in 
respect  of  any  land  or  premises  in  the  constituency,  that  is 
to  say  has  occupied  any  land  or  premises  there,  may  claim 
to  exercise  the  Parliamentary  franchise. 

University  Franchise 

The  universities  of  the  United  Kingdom,  ancient  and  mod- 
ern, are  by  the  new  Act  grouped  into  constituencies ;  and 
every  graduate  (other  than  an  honorary  graduate),  male  of 
any  age,  female  of  the  age  of  thirty,  will  be  entitled  to  vote 
for  the  election  of  members  to  represent  his  university  in 
Parliament.  The  university  franchise  was  created  so  far 
back  as  the  seventeenth  century;  but,  until  1918,  it  was  con- 
fined to  the  ancient  universities  of  England,  Scotland,  and 
Ireland,  and  to  the  University  of  London. 

"  Plural  Voting  " 

One  other  change  of  great  importance  proposed  by  the 
new  Bill  is  the  restriction  within  narrow  limits  of  "  plural 
voting,"  i.e.  voting  for  more  than  one  constituency  by  virtue 
of  different  qualifications.     A  man  may  not  now  vote  at  any 

*  The  difference  between  occupation  and  residence  has  been  previously  ex- 
plained (p.  129  n).    There  is  no  legal  definition  of  premises. 


132  THE    IMPERIAL    PARLIAMENT 

General  Election  in  more  than  two  constituencies,  of  which 
one  must  be  the  place  where  he  resides ;  while  a  woman  may 
not  give  more  than  two  votes  in  all. 

Summoning  of  Parliament 

The  right  to  summon  a  Parliament  is  vested  in  the  King 
alone ;  and,  except  in  cases  of  crisis,  there  never  has  been  any 
legal  limit  on  the  exercise  of  that  right,  beyond  the  fact  that, 
by  a  provision  of  the  first  Triennial  Act  of  1641,  since  fre- 
quently repeated,  the  summoning  of  Parliament  cannot  be 
delayed  beyond  three  years  after  the  last  previous  Parliament 
has  been  dissolved,  and  that,  by  a  vague  provision  of  the  Bill 
of  Rights  of  1689,  "  for  redress  of  all  grievances,  and  for 
the  amending,  strengthening,  and  preserving  of  the  laws. 
Parliament  ought  to  be  held  frequently."  But  the  right  in 
question  is  exercised  on  the  advice  of  the  Cabinet;  and,  as 
a  matter  of  fact,  it  has  for  centuries  been  necessary  to  have 
at  least  one  session  of  Parliament  every  year  (frequently 
more),  because  the  Crown  could  not  do  its  work  without  it. 
For  one  thing,  in  time  of  peace,  it  is,  as  we  shall  see  (p.  174), 
illegal  for  the  Crown  to  raise  or  maintain  a  single  "  regular  " 
soldier  within  the  realm  without  the  consent  of  Parliament, 
which  is  only  given  for  one  year;  whilst,  in  time  of  war,  the 
enormous  expense  of  the  navy  and  army  renders  constant 
application  to  Parliament  for  money  absolutely  necessary. 
For  another,  the  Crown  has  long  been  dependent,  even  for 
the  ordinary  expenses  of  government,  upon  Parliamentary 
grants  of  taxes ;  and  Parliament  takes  care,  by  voting  "  sup- 
plies "  for  one  year  only,  to  make  an  application  for  renewal 
next  year  a  certainty.  But,  happily,  this  important  rule 
does  not  make  it  necessary  to  hold  a  General  Election  every 
year;  because  the  same  Parliament  may,  and  usually  does, 
continue  to  hold  sessions,  or  meetings,  for  several  years,  with 
only  such  elections  as  are  rendered  necessary  by  death  or 
resignation  of  seats  in  the  House  of  Commons,  which  latter 
vacancies  are  filled  by  what  are  called  "  bye  "  elections. 


DURATION  —  ELECTIONS  133 

QuiNauENNiAi.  Parliaments 

After  a  good  deal  of  changing,  the  duration  of  Parliament 
is  now,  by  the  Parliament  Act  of  1911,  limited  to  five  years, 
unless  extended  by  an  ordinary  Act  of  Parliament  itself. 
But  again  it  must  be  remembered,  that  the  life  of  Parlia- 
ment may  be  cut  short  at  any  time  by  a  "  dissolution,"  or 
proclamation  of  the  King,  dismissing  Parliament,  which  is, 
as  a  matter  of  fact,  followed  almost  immediately  by  the  issue 
of  writs  to  summon  a  new  one. 

Method  of  Election 

It  is  not  possible  here  to  explain  in  detail  how  a  General 
Election  is  conducted.  Briefly  speaking,  a  writ  for  each  con- 
stituency is  sent,  either  (in  the  case  of  county  divisions)  to 
the  sheriff  of  the  county,  or  (in  the  case  of  boroughs)  to  the 
mayor.  These  officials,  or  "  returning  officers,"  give  notice 
that  the  elections  for  their  districts  will  be  held  at  a  certain 
place  on  dates  formerly  fixed  (within  strict  limits)  by  them- 
selves, but  now,  under  the  new  Reform  Bill,  to  be  on  the 
eighth  day  after  the  issue  of  the  Proclamation  summoning  the 
Parliament.  The  only  thing  which  actually  takes  place  on 
the  day  thus  fixed,  is  the  nomination  of  candidates,  i.e.  the 
persons  seeking  election ;  unless,  of  course,  the  election  should 
be  "  uncontested,"  i.e.  no  more  candidates  should  be  proposed 
than  there  are  vacant  seats  to  be  filled.  In  such  a  case,  the 
returning  officer  simply  declares  the  candidate  or  candidates 
nominated,  to  be  duly  elected.  But,  in  ordinary  cases,  he 
adjourns  the  election  that  a  "  poll,"  or  counting  of  votes, 
may  be  held,  to  decide  between  the  rival  candidates ;  and  this 
will  now  be  the  ninth  day  following  that  of  the  nomination, 
i.e.  the  seventeenth  after  the  issue  of  the  Proclamation  sum- 
moning the  Parliament. 

Polling 

It  is,  in  fact,  this  process  of  "  polling  "  which  is  com- 
monly, but  incorrectly,  spoken  of  as  the  "  election."    Before 


134  THE    IMPERIAL    PARLIAMENT 

the  year  1872,  this  process  might  take  several  days,  or  even 
weeks ;  and  it  was  conducted  by  the  electors  openly  recording 
their  votes  by  word  of  mouth  in  favour  of  their  chosen  candi- 
dates. If,  as  frequently  happened,  the  right  of  any  elector 
to  vote  was  denied,  the  question  of  his  right  had  to  be  dis- 
cussed and  settled  by  the  sheriff  or  mayor,  then  and  there. 
As  a  natural  consequence,  when  party  feeling  ran  high,  an 
election  was  often  a  scene  of  open  bribery,  violence,  and 
trickery,  prolonged  over  a  long  period;  and  it  was  always  an 
occasion  of  great  expense. 

The  "Ballot" 

At  last,  after  a  long  and  bitter  struggle,  the  supporters 
of  secret  voting  succeeded  in  passing  the  famous  Ballot  Act 
of  1872,  which  provides  that  all  voting  at  Parliamentary 
elections  (other  than  for  university  constituencies)  shall  be 
by  "  ballot,"  i.e.  by  placing  in  a  closed  receptacle  a  slip  of 
paper  on  which  the  elector's  choice  is  indicated  in  such  a 
way  that  no  sign  of  it  appears  to  the  by-standers.  The 
ballot  papers  are  afterwards  opened  and  counted  in  the  pres- 
ence of  the  returning  officer,  under  strict  precautions  to 
ensure  accuracy  and  secrecy  as  to  the  names  of  the  voters. 
A  provision  of  the  new  Reform  Bill  even  allows  the  sending 
of  ballot-papers  through  the  post,  and  voting  by  an  agent 
or  "  proxy,"  by  persons  on  the  "  absent  voters'  "  list ;  but 
application  to  be  placed  on  this  list  must  be  made  by  the 
voter,  when  the  register  is  made  up,  on  the  ground  that, 
owing  to  the  nature  of  his  business,  he  may  be  unable  to  at- 
tend at  the  polling  place  on  election  day. 

The  "  Electoral  Roll  " 

Moreover,  no  question  as  to  the  right  of  the  person  ten- 
dering a  vote  to  do  so  is  discussed  during  the  polling.  All 
the  voters  have  previously  been  put  upon  a  "  register  "  by 
the  local  authorities,  whose  duty  it  will  be  to  make  up  a  com- 
plete list,  every  half-year,  of  those  entitled  to  vote,  and  to 


ELECTIONS  135 

receive  and  decide,  subject  to  appeal  to  a  county  court,  all 
objections  to  the  register.  Should  any  objection  be  raised 
at  the  polling  as  to  the  identity  of  the  person  claiming  to 
vote,  e.g.  whether  he  is  really  the  "  John  Smith  "  who  is  on 
the  register,  or  as  to  whether  the  voter  has  already  voted 
elsewhere,  the  polling  officer  merely  takes  a  note  of  the  fact, 
and  allows  the  claimant,  on  making  a  formal  declaration  of 
his  right,  to  give  his  vote,  subject  to  later  investigation.  As 
each  ballot-paper  is  marked  with  the  voter's  number  on  the 
register,  there  is  no  difficulty  in  tracing  it  afterwards ;  if  the 
voter  is  prosecuted  for  "  personation,"  i.e.  pretending  to  be 
a  person  other  than  that  he  really  is,  or  for  voting  oftener 
than  he  is  entitled  to  do.  Without  official  authority,  no  at- 
tempt to  discover  the  marker  of  any  ballot-paper  is  allowed. 

"  Polling  Booths  " 

By  these  means,  and  by  having  several  "  polling  stations  " 
scattered  at  convenient  spots  all  over  the  constituency,  the 
whole  of  the  poll,  even  in  the  most  populous  constituencies, 
is  taken  (with  rare  exceptions)  on  a  single  day;  and  the 
result  is  made  up  and  declared,  almost  immediately,  by  the 
returning  officer,  assisted  by  a  staff  of  trained  clerks,  who 
count  the  ballot-papers  in  the  presence  of  the  candidates' 
agents.  An  even  more  desirable  reform  will  be  effected  by 
the  provision  of  the  new  Reform  Bill,  before  alluded  to 
(p.  130),  which  requires  that  the  pollings  for  all  the  con- 
stituencies in  the  United  Kingdom  (other  than  university 
constituencies)  shall  take  place  on  the  same  day.  This  pro- 
vision will  put  still  further  restriction  in  practice  upon  the 
limited  amount  of  "  plural  voting  "  (p.  131)  allowed  by  the 
Bill ;  for,  despite  the  long  hours  during  which  the  polling 
stations  are  now  open,  it  will  be  difficult  for  an  elector  having 
a  residential  vote,  say,  in  London,  to  give  an  occupation  vote 
in  Aberdeen,  on  the  same  day.  Perhaps  not  less  important, 
it  will  prevent  the  accidental  fact  of  the  constituencies  first 
consulted  voting  in  a  certain  way,  exercising  an  undue  in- 
fluence upon  the  voting  at  the  later  polls. 


136  THE    IMPERIAL    PARLIAMENT 

Disqualifications  for  Electors  and  Members 

Brief  mention  should,  perhaps,  here  be  made  of  certain 
positive  "  disqualifications  "  which  prevent  a  person  other- 
wise qualified  to  be  elected,  or  to  vote  for  election,  to  the 
House  of  Commons,  exercising  his  right.  In  times  past  this 
subject  has  been  connected  with  fierce  and  bitter  jealousies 
based  on  religious  prejudice.  Roman  Catholics,  Protestant 
Nonconformists,  Jews,  Quakers,  and  other  religious  bodies, 
have  from  time  to  time  been,  on  one  pretext  or  another,  ex- 
cluded. Happily,  however,  the  last  of  these  "  disabilities  " 
disappeared  thirty  years  ago ;  and  now  only  such  reasonable 
disqualifications  as  want  of  age,  conviction  for  serious  crime 
(including  corrupt  practices  at  elections),  bankruptcy,  in- 
sanity, alien  nationality,  and  (for  being  elected)  Church  of 
England  or  Roman  Catholic  ministry,  remain.  Most  of 
these  disqualifications,  but  not  quite  all,  apply  also  to  mem- 
bership of  the  House  of  Lords ;  and,  of  course,  no  peer  can 
vote  at  any  election  to  the  House  of  Commons,  or  be  elected 
thereto  with  the  single  exception,  before  noted  (p.  123),  of 
an  Irish  non-representative  peer,  who  may  be  elected  for  any 
constituency  in  Great  Britain,  and,  having  been  so  elected, 
may  vote  in  any  similar  constituency  for  which  he  is  other- 
wise qualified.  The  returning  officer  at  an  election  may  not 
give  an  ordinary  vote ;  but  if  two  or  more  candidates  for  a 
seat  poll  an  equal  number  of  votes,  he  may  give  a  decisive  or 
"  casting  "  vote.  Apparently,  there  is  no  law  which  prevents 
a  candidate,  otherwise  qualified,  voting  for  himself. 

Election  Petitions 

Another  great  improvement  has  taken  place  in  compara- 
tively recent  times,  in  the  matter  of  disputed  elections.  For 
long  the  House  of  Commons  jealously  asserted  its  own  right 
to  decide  such  matters.  At  first  each  case  was  referred  to  a 
"  select  committee  "  of  the  House,  chosen  ad  hoc,  i.e.  to  decide 
the  particular  case.  The  consequence  was,  that  the  most 
powerful  party  in  the  House,  usually,  of  course,  the  party 


DISPUTED    ELECTIONS  137 

supporting  the  Ministry,  took  care  to  appoint  on  the  com- 
mittee a  majority  of  its  own  members,  who  invariably  de- 
cided in  favour  of  the  party  candidate.  In  the  year  1770,  an 
Act  of  Parliament,  known  as  Grenville's  Act,  was  passed  to 
provide  for  the  creation,  at  the  opening  of  each  new  Parlia- 
ment, of  a  "  standing  "  or  permanent  committee,  to  deal 
with  disputed  elections  during  that  Parliament;  and  there 
was  thus  some  guarantee,  though  not  very  much,  that  dis- 
putes would  be  settled  according  to  law,  and  not  according  to 
party  prejudice.  But  a  far  better  plan  was  adopted  in 
1868,  when  the  trial  of  "  election  petitions  "  was  entrusted 
to  the  High  Court  of  Justice,  which  appoints,  at  the  begin- 
ning of  each  year,  three  of  its  judges,  chosen  by  rotation, 
to  hear  all  cases  which  may  arise  during  the  year.  Such 
cases  are  heard  and  tried  on  the  spot,  as  much  like  ordinary 
actions  as  possible;  the  petitioner,  or  person  who  objects  to 
the  return  made  by  the  returning  officer,  acting  as  plaintiff, 
and  the  successful  candidate  as  defendant.  There  is,  how- 
ever, no  jury ;  and  the  Court  consists  of  two  judges.  A  very 
valuable  provision  of  the  Act  enables  the  judges  to  promise 
a  witness  that,  if  he  will  make  a  full  disclosure,  he  shall  be 
protected  from  punishment  for  any  share  which  he  may  have 
taken  in  any  "  election  offence,"  such  as  bribery,  intimida- 
tion, "  treating,"  personation,  illegal  expenditure,  or  the 
like.  At  the  close  of  the  evidence  and  arguments,  the  Court 
gives  its  decision,  which,  however,  takes  the  form  of  a  report 
to  the  Speaker,  or  Chairman  of  the  House,  as  to  the  result 
of  the  trial;  and  the  House  itself  carries  the  decision  into 
effect,  either  by  declaring  the  seat  vacant,  or  any  candidate 
to  be  duly  elected.  If  the  trial  has  disclosed  offences  against 
the  "  Corrupt  Practices  Acts,"  prosecutions  in  due  course 
follow,  except  against  offenders  protected  as  above  described ; 
and,  if  the  evidence  shows  wholesale  demoralization,  the  con- 
stituency may  be  "  disfranchised,"  or  deprived  of  its  repre- 
sentation, by  Act  of  Parliament,  for  a  longer  or  shorter 
period.  A  further  guarantee  of  the  purity  of  elections  is 
now  promised  by  the  stringent  provisions  of  the  new  Reform 


138  THE    IMPERIAL    PARLIAMENT 

Bill,  which  limit  the  expenditure  which  may  be  incurred  by 
a  candidate  in  his  election  contest,  and  by  the  provision  that 
the  expenses  of  returning  officers  shall  be  defrayed  by  The 
Treasury. 

Party  Organization 

Before  leaving  the  subject  of  Parliamentary  elections,  it 
is  necessary  to  point  out,  that  the  process  above  described 
only  deals  with  the  legal,  as  distinguished  from  the  practical 
side  of  affairs.  In  theory,  each  constituency  chooses  as  its 
representative  the  man  in  whom  it  has  the  greatest  confidence, 
and  relies  on  him  to  exercise  his  own  judgment  in  dealing 
with  all  matters  in  which  he  is  called  upon  to  take  part  in 
Parliament.  In  practice,  this  ideal  state  of  affairs  is  never 
attained ;  and,  in  all  probability,  the  results  would  be  very 
disappointing  if  it  were.  For  a  House  of  Commons  thus 
chosen  would  be  a  debating  society,  not  a  business  meeting. 
Its  members  would  have  no  cohesion,  no  common  plans.  Each 
would  have  his  own  little  pet  scheme  to  run,  which  would 
stand  no  chance  of  being  carried,  except  by  a  rather  unwhole- 
some system  of  bargaining  for  support  by  mutual  promises 
of  votes.  Such  a  House  would  neither  effectively  support  a 
Government,  nor,  on  the  other  hand,  criticize  it  effectively. 
Its  support  would  be  vacillating  and  uncertain;  its  criticism 
would  be  feeble,  and  would  be  disregarded. 

These  difficulties  were  felt,  almost  unconsciously,  more 
than  two  centuries  ago,  when  it  became  clear  that  the  real 
power  in  the  State  was  passing  to  the  House  of  Commons ; 
and  they  were  met  by  the  adoption  of  what  is  known  as  the 
"Party  System,"  before  referred  to  (pp.  96-99),  i.e.  the 
voluntary  association  of  themselves  by  the  electors  through- 
out the  kingdom  into  great  groups,  with  elaborate  arrange- 
ments, both  at  headquarters  in  London,  and  in  each  constitu- 
ency, for  nominating  and  supporting  candidates  favoured  by 
the  group  or  "  party."  This  process  necessarily  involves  the 
adoption  by  each  party  thus  formed  of  "  principles,"  i.e.  fun- 
damental objects  to  be  attained  or  beliefs  to  be  carried  into 


PARTY    ORGANIZATION  139 

acti'on,  and  of  a  "  programme,"  or  list  of  measures  believed 
to   be  desirable  to   further   these   objects   and  beliefs;   and 
membership  of  the  party  is  conditional  upon  the  acceptance 
of  these  principles  and  programme.      In  order  to  be  ready 
for  a  General  Election,  which  may  come  "  like  a  thief  in  the 
night,"  it  is  necessary  for  the  leaders  of  the  party  to  be  con- 
stantly in  touch  with  their  followers  in  the  House,  and  for 
the  latter  to  be  in  touch  with  their  constituents.    This  neces- 
sity results  in  a  frequent  exchange  of  ideas  and  a  good  deal 
of  personal  intercourse,  which  again  have  a  good  effect  in 
stimulating  interest  in  politics,  and  creating  a  healthy  public 
opinion.     Supporters  of  autocracy,  practical  and  theoretical, 
are  very  apt  to  decry  the  Party  System ;  and  there  can  be  no 
doubt  that,  like  many  other  institutions,  it  is  liable  to  great 
abuse.    For  example,  the  discipline  necessarily  exercised  over 
their  followers  by  the  leaders  of  a  party  through  its  "  Whips  " 
or  officials,  may  be  secured  by  promises  of  patronage,  and 
may  degenerate  into  tyranny ;  whilst  the  corresponding  sup- 
port needed  by  the  private  members  from  their  constituents 
may  be  obtained  by  flattery  and  servility,  which  may  render 
the  member  a  mere  voting  machine.     For  all  that,  it  is  toler- 
ably clear  that  no  other  means  could,  in  the  past,  have  en- 
abled public  opinion  effectively  to  control  the  policy  of  the 
Government,  and  that  the  alternative  would  either  have  been 
a  "  bureaucracy,"  in  which  the  work  of  Government  is  car- 
ried on  by  officials  or  departments,  having  little  union  and 
regardless  of  public  opinion,  or  it  would  have  been  a  "  group- 
system  "  in  which  little  bands  of  members  of  the  House  would 
have  bargained  with  one  another  to  secure  a  majority. 

Absence  of  Imperial  Representation  in  Parliament 

Reserving  for  the  next  chapter  an  account  of  the  work  of 
Parliament,  and  the  methods  by  which  it  accomplishes  it, 
we  may  end  here  with  another  reference  to  what  is,  undoubt- 
edly, the  most  anomalous  feature  of  the  Imperial  Parliament. 
This  is  the  fact  that,  though  it  claims  to  exercise  sovereign 
authority  throughout  the  British  Empire,  it  is  not  really 


140  THE    IMPERIAL    PARLIAMENT 

representative,  in  the  strict  sense,  of  any  part  of  the  Empire 
outside  the  United  Kingdom.  No  members  are  elected  to  it, 
even  from  such  adjacent  possessions  as  the  Channel  Islands 
and  the  Isle  of  Man ;  much  less  from  the  distant  self-govern- 
ing Dominions  of  Canada,  South  Africa,  or  Australia,  the 
Crown  colonies,  or  the  great  dependency  of  India.  Distin- 
guished colonials  have  been  from  time  to  time  elected  by  con- 
stituencies in  the  United  Kingdom ;  and  their  presence  has 
been  of  great  value  to  the  House.  But  this  practice  has  been 
entirely  haphazard ;  and  these  members  have  been  in  no  sense 
entitled  to  speak  as  representatives  of  their  colonies.  The 
inevitable  result  has  been,  that  Parliament  has  hesitated  to 
exercise  its  authority  over  the  Outer  Empire  —  has,  in  fact, 
almost  ceased  to  do  so  as  regards  the  self-governing  Domin- 
ions (pp.  58,  59).  Perhaps,  on  the  whole,  this  result  has  been 
good ;  at  any  rate  it  has  prevented  the  growth  of  that  spirit 
of  active  antagonism  which  led  to  the  American  revolution, 
and  it  has  fostered,  in  the  self-governing  Dominions,  a 
healthy  spirit  of  self-reliance.  On  the  other  hand,  it  has 
prevented  the  growth  of  a  close  Imperial  organization ;  it  has 
allowed  a  good  many  anomalies  and  inconsistencies,  some  of 
which  are  not  without  danger,  to  grow  up ;  it  has  left  the 
control  of  the  Crown  colonies  and  India  too  much  in  the 
hands  of  officials ;  and  it  has  tended  to  encourage  the  perhaps 
excessive  growth  of  rival  Parliamentary  institutions,  which 
may  some  day  prove  a  serious  stumbling-block  in  the  path 
of  a  really  Imperial  Parliament. 


CHAPTER    VII 

THE   WORK  OF  THE    IMPERIAL    PARLIAMENT 

As  has  been  pointed  out  before  (p.  25),  the  Parliament  at 
Westminster  is  distinguished  from  many  other  legislative 
bodies  by  the  fact  that  its  work  is  by  no  means  confined  to 
the  making  of  laws.  It  will  be  also  remembered,  that  the 
House  of  Commons  was  not  originally  created  for  that  pur- 
pose at  all,  but  merely  for  the  humble  purpose  of  voting  taxes 
on  demand.  This  original  purpose  it,  of  course,  still  fulfils ; 
and  the  financial  side  of  its  work  is,  or  should  be,  of  extreme 
importance.  Beyond  legislation  and  finance,  however,  Par- 
liament, and  especially  the  House  of  Commons,  is  concerned 
both  with  supporting  and  criticizing  the  "  Ministry  of  the 
day,"  i.e.  the  men  who  actually  carry  on  the  daily  work  of 
government,  with  expressing,  by  formal  resolution  or  other- 
wise, the  public  opinion  of  the  country  on  matters  of  public 
interest,  with  eliciting  information  on  matters  of  State,  and 
especially  about  grievances  alleged  to  be  suffered  by  the  pri- 
vate citizen  at  the  hands  of  Government  ofl^cials,  and,  finally, 
to  a  slight  extent,  with  the  administration  of  justice.  Of 
these  matters  in  their  order. 

Legislation 

We  mean  by  "  legislation  "  the  issuing  of  formal  laws  in- 
tended to  apply  generally  to  all  classes  of  the  community, 
or  to  some  considerable  class  in  it,  or  else  to  some  special 
locality  only  or  to  some  individual  or  family  only.  To  all 
Parliamentary  legislation  is  given  the  name  "  Act  of  Parlia- 
ment," or  "  statute  " ;  though  the  latter  word  is  less  precise, 
because  some  forms  of  legislation  not  made  by  Parliament 
are  also  "  statutes  "  —  e.g.  the  statutes  of  a  college. 


142     WORK    OF    THE    IMPERIAL    PARLIAMENT 

"  Public  "  and  "  Private  "  Acts 

Acts  of  Parliament  which  are  intended  to  affect  the  com- 
munity as  a  whole,  or  a  considerable  class  within  it,  are  called 
"  Public  Acts  " ;  those  intended  to  affect  only  a  special 
locality  (such  as  an  Act  authorizing  the  provision  of  a  water- 
supply  for  a  single  town)  are  called  "  Local  Acts  " ;  those 
intended  to  affect  only  an  individual  or  a  small  group  of  in- 
dividuals (such  as  an  Act  settling  a  family  estate  or  imposing 
a  divorce  on  married  persons)  are  known  as  "  Personal  " 
Acts ;  and  "  Local  "  and  "  Personal  "  Acts  are  known  collec- 
tively as  "  Private  Acts."  ^  All  Acts  of  the  Imperial  Parlia- 
ment are  equally  binding  on  all  courts  of  justice  throughout 
the  Empire;  but  whereas  every  such  court  is  supposed  to 
know  and  observe  all  the  provisions  of  every  existing  Public 
Act,  a  judge  is  not  supposed  to  be  aware  of  the  existence  or 
provisions  of  a  Private  Act,  unless  his  attention  is  called  to 
it  by  one  of  the  parties  before  him.  Moreover,  Private  Acts 
are  not  usually  printed  and  published  with  the  ordinary  col- 
lections of  Acts  of  Parliament;  though  copies  of  them  can, 
of  course,  be  purchased  from  the  King's  Printer.  Also  there 
is,  as  we  shall  see,  some  considerable  difference  between  Pub- 
lic and  Private  Acts  in  the  ways  in  which  they  are  respec- 
tively brought  into  existence. 

For  the  process  of  "  passing  "  an  Act  of  Parliament  is 
one  of  considerable  length  and  intricacy,  which  is  designed, 
no  doubt,  to  prevent  hasty  legislation,  but  which,  in  fact, 
renders  the  work  of  Parliament  extremely  and,  indeed,  in 
some  respects,  unnecessarily  slow.  Thus,  for  example,  there 
is  the  famous  rule,  so  old  that  its  origin  is  unknown,^  to  the 
effect  that  every  Bill,  or  proposal  of  legislation,  must  be 
"  read  "  and  agreed  to  three  separate  times  in  each  House 
of  Parliament  before  it  becomes  law ;  while  in  between  the 

'  There  is  a  narrower  sense  in  which  only  the  last  class  rank  as  "Private 
Acts."    This  narrow  class  receives  the  royal  assent  in  a  special  form. 

*  The  writer  ventures  to  guess  that  it  was  connected  with  the  three  annual 
"crown-wearing"  days  (Michaelmas,  Christmas,  and  Easter)  on  which  the 
Norman  Kings  met  their  Magnates  in  different  parts  of  the  country. 


ACTS    OF    PARLIAMENT  143 

different  "  readings  "  are  sandwiched  discussions  in  "com- 
mittee "  of  an  informal,  but  often  extremely  lengthy  charac- 
ter, in  which  each  clause  of  the  Bill  is  subject  to  minute  ex- 
amination. But  it  will  be  better  to  sketch  briefly  the  steps 
by  which  an  ordinary  Public  Bill  is  converted  into  an  Act  of 
Parliament. 

Public  Bills 

The  first  formal  step  is,  of  course,  the  drawing  up  or 
"  drafting  "  of  the  Bill  itself.  As  we  have  previously  seen 
(p.  15),  this  step  was  originally  left  to  the  King's  advisers 
after  the  "  prayer  "  or  "  petition  "  for  the  Bill,  presented  by 
Parliament,  had  been  granted  by  the  King.  But,  for  cen- 
turies now,  every  project  for  a  Public  Act  has  been  presented 
to  Parliament  in  the  exact  form  in  which  its  supporters,  or 
"  promoters,"  wish  it  to  pass,  that  is,  with  the  solemn  form 
of  enactment  by  King,  Lords,  and  Commons  (p.  14),  and 
then  each  clause  of  the  Bill  set  out  and  numbered  in  regular 
order.  If  the  Bill  is  a  "  Government  measure,"  that  is,  a  pro- 
posal introduced  by  the  Cabinet  on  its  collective  responsibil- 
ity, it  is  "  drafted  "  by  one  of  the  Parliamentary  Counsel  to 
the  Treasury  (barristers  appointed  by  the  Crown  for  the 
purpose),  or  by  some  independent  expert  engaged  for  the 
particular  task.  If  it  is  a  "  private  member's  Bill,"  ^  i.e. 
a  proposal  made  by  a  member  of  Parliament  not  holding 
Government  office,  it  is  drafted  by  himself  or  any  one  whom 
he  may  employ  for  the  purpose.  It  bears  upon  its  back  the 
name  of  at  least  one  member  of  the  House  who  is  its  intro- 
ducer or  "  sponsor." 

First  Reading 

Strictly  speaking,  no  member  could  formerly  introduce  a 
Bill  without  leave  of  the  House ;  and  a  motion  for  "  leave  to 
introduce  "  was  the  first  public  step  in  the  passing  of  a  Bill, 
But  such  leave  was  never,  or  rarely,  refused ;  and  now  any 

'  It  will  be  remembered  (p.  15)  that  a  "private  member's  Bill"  is  by  no 
means  necessarily  a  "Private  Bill." 


144     WORK   OF    THE    IMPERIAL    PARLIAMENT 

member  may,  after  notice,  introduce  a  Bill,  by  "  laying  it 
on  the  table,"  which,  in  eflFect,  means  by  circulating  it  in 
printed  form  among  the  members  of  the  House.  But,  before 
this  step  can  actually  take  place,  the  Bill  is  "  read  "  for  a 
first  time,  a  process  which  is  thus,  also,  purely  formal. 

Second  Reading 

The  real  crisis  in  the  fate  of  a  Bill  comes  on  the  second 
reading,  which  takes  place  on  a  day  fixed  by  the  House.  The 
object  and  scope  of  the  measure  are  then  fully  explained  and 
advocated  by  its  proposer  and  seconder;  and  the  motion  for 
second  reading  may  be  opposed  in  a  direct  or  indirect  man- 
ner, e.g.  by  a  negative  or  an  amendment,  suggesting  post- 
ponement. 

Committee 

If,  however,  it  is  carried,  the  Bill  is  referred  to  a  commit- 
tee, nominally  one  of  the  Standing  Committees,^  but  in  cer- 
tain cases  (p.  154)  to  a  Committee  of  the  whole  House,  with 
the  Chairman  of  Committees  instead  of  the  Speaker  (or  Lord 
Chancellor  if  the  measure  is  in  the  Lords)  in  the  chair.  In* 
committee,  the  Bill  is  discussed  informally,  clause  by  clause ; 
and  any  amendments  in  it  may  be  made,  subject  to  the  rule 
that,  in  the  absence  of  formal  "  Instructions,"  previously 
issued  by  resolution  in  the  House  itself,  no  amendment  en- 
larging the  scope  of  the  Bill,  or  introducing  irrelevant  mat- 
ter, may  be  proposed. 

Report  of  Progress 

Another  purely  formal  step  is  the  "  reporting  of  prog- 
ress "  made  by  the  committee  with  the  Bill,  to  the  House,  and 
the  obtaining  of  leave  for  the  committee  to  "  sit  again."  But 
when  the  committee  has  finished  its  labours,  the  Bill  is  laid 
before  (or  "  reported  to  ")  the  House  in  its  complete  form; 

^  "Standing  Committees"  are  committees  of  sixty  to  eighty  members.  A 
Bill  may  also  be  referred  to  "Select,"  or  specially  appointed.  Committee. 


PASSING    OF    BILLS  145 

and  a  discussion  of  the  Bill  in  its  "  report  stage  "  may  take 
place,  unless  the  Bill  has  passed  through  Committee  of  the 
whole  House  unaltered. 


Third  Reading 

At  this  stage,  verbal  amendments  may  be  made  by  the 
House  itself;  but,  if  these  are  extensive,  the  Bill  may  be 
re-conimitted,  for  further  discussion  of  the  whole  or  part,  in 
committee.  When  all  these  stages  have  been  safely  passed, 
the  Bill  is  "  read  "  a  third  time  in  the  House ;  and  this  in  some 
cases  (though  not  invariably)  takes  place  as  a  matter  of 
course. 

Other  House 

The  Bill  has  now,  so  far  as  the  House  in  which  it  began  is 
concerned,  been  successful ;  but  we  must  not  forget  that  Par- 
liament consists  of  two  Houses  having  prima  facie,  exactly 
equal  powers  in  legislation,  though,  as  we  shall  see,  this 
equality  has  lately  undergone  substantial  modification.  The 
Bill  is,  therefore,  sent  to  the  other  House  for  its  concur- 
rence ;  and  the  same  process  which  has  taken  place  in  the  one 
House  is  (with  slight  modifications)  repeated  in  the  other, 
and,  if  the  other  House  concurs,  the  Bill  is  returned  to  the 
House  of  its  origin,  with  a  message  to  that  effect.  The  meas- 
ure is  then  ready  for  the  formality  of  the  royal  assent. 

Differences  between  the  Houses 

It  may  be,  however,  that  there  is  a  difference  of  opinion, 
partial  or  complete,  between  the  two  Houses,  as  to  the 
merits  of  a  Bill.  In  the  former  case,  steps  may  be  taken  to 
come  to  an  agreement  —  formerly  by  a  "  free  "  or  "  formal  " 
conference,  which  was  a  debate  between  "  managers  "  ap- 
pointed by  each  House,  or  (according  to  modern  practice) 
by  informal  negotiations  between  members  of  the  two  Houses, 
in  the  course  of  which  a  compromise  is  usually  reached. 

It  may,  however,  be  that  the  two  Houses  are  definitely  at 


146     WORK   OF    THE    IMPERIAL    PARLIAMENT 

issue  on  a  measure;  and,  until  a  few  years  ago,  it  was  im- 
possible to  speak  with  certainty  as  to  what  would  then  hap- 
pen. If  a  measure  sent  by  the  Commons  to  the  Lords  were 
of  little  public  importance  or  interest,  it  would  be  "  dropped," 
i.e.  allowed  to  disappear  on  its  rejection  by  the  Lords;  if  it 
were  a  matter  of  first-class  importance,  in  the  view  of  the 
Ministry,  and  the  latter  had  the  support  of  the  Crown,  the 
Ministry  might  allow  the  House  of  Lords  to  know  that,  if 
necessary,  it  would  advise  the  Crown  to  create  a  sufficient 
number  of  new  peers  to  enable  the  Bill  to  be  carried.  This 
was  actually  done  in  1712,  to  secure  a  majority  for  the  Peace 
of  Utrecht;  it  has  been  more  than  once  threatened,  notably 
to  secure  the  passing  of  the  Reform  Bill  of  1832,  and  the 
Parliament  Bill  of  1911.  But  the  Crown  may,  unless  the 
country  has  had  a  recent  opportunity  of  expressing  its  opin- 
ion, before  taking  this  extreme  step,  require  the  Cabinet  to 
"  appeal  to  the  people  "  (p.  33),  by  a  dissolution  and  Gen- 
eral Election.  If  the  Cabinet  obtains  an  increased,  or  only 
slightly  diminished  majority  of  the  election,  the  Lords  either 
give  way  or  the  new  peers  will  be  created ;  if  the  Cabinet's 
majority  falls  substantially,  the  Bill  is  dropped,  as  not  hav- 
ing the  support  of  the  country. 

Parliament  Act  of  1911 

The  important  subject  of  disagreement  between  the  two 
Houses  has,  however,  been  recently  put  on  an  altogether  dif- 
ferent footing  by  the  Parliament  Act  of  1911,  previously 
alluded  to.  By  that  measure,  if  a  Public  Bill  (p.  142),  not 
being  a  "  Money  "  Bill  (p.  149),  or  a  Bill  for  increasing  the 
duration  of  Parliament  beyond  five  years  (p.  132),  is  passed 
by  the  House  of  Commons,  in  the  same  form,  in  three  suc- 
cessive sessions,  and  sent  up  to  the  House  of  Lords  one 
month  before  the  end  of  each  session,  and  is  not  passed  un- 
altered by  that  House,  the  Bill  may,  on  the  third  rejection, 
be  presented  to  the  Crown  for  royal  assent,  and,  on  receiv- 
ing it,  will  become  law,  without  the  assent  of  the  House  of 
Lords.      It   should  be  carefully   obser\'ed  that,   though  the 


DIFFERENCES    BETWEEN    THE    HOUSES     147 

three  sessions  must  be  consecutive,  they  need  not  all  be  in  the 
same  Parliament  ■ —  in  other  words,  there  may  be  a  General 
Election  during  the  passing  of  the  measure,  and,  if  the  new 
Parliament  is  of  like  mind  with  its  predecessor,  the  Bill  will 
go  on.  There  are  also  careful  provisions  in  the  Act  enabling 
the  House  of  Commons  to  accept  "  suggestions  "  of  altera- 
tion made  by  the  Lords,  without  forfeiting  its  privileges 
under  the  Act ;  and  a  Bill  passed  under  the  provisions  of  the 
Act  receives  a  special  form  of  "  enacting  "  words,  showing 
that  it  is  so  passed,  as  was  done,  for  example,  in  the  "  Home 
Rule  "  Act  of  1914.  In  the  case  of  Bills  dealing  with  finance 
("  Money  Bills  "),  additional  and  more  stringent  provisions 
apply;  but  these  will  be  best  dealt  with  when  we  come  to 
speak  of  the  peculiar  privileges  of  the  Commons  in  finance 
matters. 

Private  Bills 

The  course  of  a  "  Private  "  Bill  (p.  142)  through  Par- 
liament differs  from  that  followed  by  a  "  Public "  Bill, 
mainly  in  that  the  introduction  is  preceded  by  the  lodging 
of  a  petition  at  the  Private  Bill  Office  by  a  fixed  date  in  the 
year,  and  that  the  Bill,  before  being  presented,  must,  in 
case  of  doubt,  receive  a  certificate  (the  granting  of  which 
may  be  opposed)  that  the  Standing  Orders  of  the  House, 
which  regulate  such  matters,  have  been  complied  with.  Fur- 
ther, if  the  Bill  passes  its  second  reading  (p.  144),  it  is  re- 
ferred to  a  small  "  select  "  committee  of  the  House,  which 
acts  as  a  kind  of  judicial  body,  and  hears  arguments  by 
counsel  (barristers)  for  and  against  the  expediency  of  the 
measure.  It  is  then  "  reported,"  cither  amended  or  un- 
amended by  the  committee,  to  the  House,  and  read  a  third 
time,  like  a  "  Public  "  Bill. 

Provisional  Orders 

Finally,  Parliament  exercises  what  may  be  called  an  indi- 
rect power  of  legislation  through  "  Provisional  "  and  other 
Orders.     The  former  are  issued  by  Government  departments 


148     WORK   OF    THE    IMPERIAL    PARLIAMENT 

under  the  authority  of  various  Acts  of  Parliament  dealing 
with  public  facilities  such  as  the  supply  of  gas,  water,  and 
electricity,  the  building  of  light  railways,  harbours,  and 
piers,  the  confirming  of  doubtful  marriages,  or  the  making 
of  detailed  arrangements  for  local  government.  These  Or- 
ders, when  made,  are  incorporated  into  the  Schedule  to  a 
Bill,  which,  though  introduced  as  a  "  Public  Bill,"  passes 
through  much  the  same  stages  as  a  "  Private  Bill."  They 
are,  in  fact,  in  many  cases,  practically  Private  Bills ;  for 
the  Provisional  Order  itself  is  often  founded  on  a  scheme 
promoted  by  a  railway  or  other  company.  But,  instead  of 
being  passed  as  a  separate  Act,  it  is  included  in  the  Sched- 
ule to  a  Provisional  Orders  Confirmation  Act,  several  of 
which  are  passed  during  each  ordinary  session. 

CoNTHOL  OF  Ministry 

The  second  of  the  great  duties  undertaken  by  Parlia^ 
mcnt  is  the  control  of  the  Ministry  or  Cabinet  in  the  daily 
conduct  of  government.  This  duty  has  grown,  historically, 
out  of  the  claims  of  Parliament  in  the  matter  of  finance, 
the  earliest  of  the  function  of  Parliament,  and  its  most  suc- 
cessful instrument  in  acquiring  power.  For,  as  we  have 
seen,  the  original  duty  of  Parliament  to  vote  taxation  rap- 
idly developed  (pp.  30,  31)  into  the  right  to  forbid  the  levy 
of  any  new  taxation  without  its  consent,  then  into  the  right 
to  "  appropriate  "  any  taxes  which  it  might  grant,  to  par- 
ticular objects,  and,  as  a  consequence,  to  check  and  examine 
the  expenditure  of  such  grants. 

Privilege  of  Commons 

It  is  also  well  known,  that,  very  early  in  its  history,  the 
House  of  Commons,  as  distinct  from  the  House  of  Lords, 
acquired  the  right  of  initiation  in  all  grants  of  taxation  — 
that  is  to  say,  the  right  that  all  proposals  by  the  Crown  for 
the  levy  of  taxation  should  be  presented  to,  and  discussed 
by,  the  Commons,  before  being  so  much  as  mentioned  in  the 


MONEY    BILLS  149 

Lords.  This  right  was  early  guaranteed  by  a  special  form 
of  "  preamble,"  prefixed  to  every  Finance  or  Consolidated 
Fund  Bill  (p.  155),  to  the  effect  that  "  the  Commons  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  .  .  .  have 
freely  and  voluntarily  [or  "  cheerfully  "]  resolved  to  (give 
and)  grant  unto  your  Majesty."  The  right  is,  moreover, 
specially  alluded  to  in  the  King's  Speech  at  the  opening  and 
close  of  each  session,  in  a  paragraph  specially  addressed  to 
the  "  Gentlemen  of  the  House  of  Commons." 

Tacking 

But  the  exclusive  privileges  of  the  Commons  in  the  matter 
of  finance  now  extend  much  further  than  the  mere  right  of 
"  initiation."  For,  shortly  after  the  Restoration  of  Charles 
II,  the  House  of  Commons,  flushed  with  its  victory  in  the 
Civil  War,  began  to  question  the  right  of  the  Lords  even  to 
make  any  amendment  in  a  Money  Bill  sent  up  from  the 
Commons ;  while  any  step  taken  by  the  Lords  so  much  as 
suggesting  a  new  tax  or  expenditure  was  fiercely  resented 
by  the  Commons.  The  first  definite  step  was  taken  in  1671, 
and  was  followed  in  1678  by  a  formal  resolution  of  the 
House  of  Commons,  which  was  effectively  backed  up  by  the 
rather  unscrupulous  practice  of  "  tacking "  any  measure 
likely  to  be  disapproved  of  by  the  Lords  to  a  Bill  embody- 
ing the  whole  financial  scheme  of  the  year,  and  leaving  the 
Lords  to  accept  or  reject  the  two  things  together.  Inas- 
much as  a  rejection  of  the  financial  scheme  would  have  prac- 
tically involved  the  stoppage  of  government,  the  Lords  were 
seldom  prepared  to  take  the  responsibility  of  such  a  step. 
But  they  rightly  resented,  as  an  unfair  weapon,  this  process 
of  "tacking  " ;  and  it  was  rarely  resorted  to,  though,  un- 
doubtedly, when  an  entirely  new  scheme  of  taxation  is  pro- 
posed, it  is  difficult  to  avoid  introducing  into  the  measure 
clauses  not  of  a  strictly  financial  character.  Moreover,  the 
Lords  did  not  admit  openly  their  inability  to  amend,  much 
less  to  reject  entirely,  a  Money  Bill;  though  in  practice  they 
ceased  almost  entirely  to  do  either  before  the  middle  of  the 


150     WORK   OF    THE    IMPERIAL   PARLIAMENT 

eighteenth  century.  Such  protests  as  they  made  were  con- 
fined mainly  to  refusing  or  amending  measures  which  were 
substantially  political  in  character,  though  they  involved, 
incidentally,  some  financial  changes,  e.g.  the  famous  Paper 
Duties  Bill  of  1860. 

The  Struggle  of  1909 

At  last,  however,  the  Lords,  on  the  presentation  of  the 
famous  "  Budget "  of  1909,  determined  to  challenge  the 
claim  of  the  Commons  to  the  sole  authority  in  matters 
of  finance,  and,  somewhat  rashly,  instead  of  making 
mere  amendments,  boldly  threw  out  the  Bill  on  the  second 
reading. 

New  Provision 

The  Commons  at  once  responded  to  the  challenge;  and 
though,  after  a  General  Election  had  given  the  Ministry  a 
majority,  the  Lords  gave  way,  and  passed  the  Finance  Bill, 
the  Ministry  introduced  and  carried  through  both  Houses 
(though  not  without  a  bitter  struggle)  the  Parliament  Act 
of  1911,  which  not  only,  as  we  have  seen  (p.  146),  placed 
severe  restrictions  on  the  power  of  the  Lords  to  reject  or 
amend  an  ordinary  Public  Bill  sent  up  by  the  Commons,  but, 
in  the  case  of  financial  measures,  in  effect  abolished  that 
power  altogether,  by  providing  that  any  Money  Bill,  certi- 
fied by  the  Speaker  of  the  House  of  Commons  as  such,  may, 
if  not  assented  to  by  the  Lords  within  a  month  of  session 
after  being  received  from  the  Commons,  be  presented  for  the 
royal  assent  without  further  delay. 

Having  thus  explained  the  peculiar  pi^ivileges  of  the 
House  of  Commons  in  financial  matters,  we  may  now  pro- 
ceed to  describe  the  passing  of  the  annual  "  Budget,"  or 
financial  scheme  of  the  Government. 

The  "Budget" 

We  say,  advisedly,  "  of  the  Government,"  because  it  is 
one  of  the  firmest  and  wisest  rules  of  the  House  of  Com- 


THE    "BUDGET"  151 

mons,  that  no  proposal  for  the  levy  or  expenditure  of  na- 
tional funds  can  come  from  any  one  but  the  Crown,  acting 
through  one  of  its  Ministers,  usually  the  Chancellor  of  the 
Exchequer,  in  the  House.  This  rule,  which  is  ordained  by 
the  House  itself  in  the  interests  of  economy,  is  based  upon 
the  sound  principle,  that  any  one  who  makes  a  foolish  finan- 
cial proposal  shall  be  liable  to  suffer  for  it  by  loss  of  office ; 
and  it  is  necessary  as  a  check  on  that  most  dangerous  of 
virtues,  a  readiness  to  be  generous  at  other  people's  expense. 
In  bodies  where  a  similar  "  self-denying  ordinance  "  does  not 
prevail,  nothing  is  more  tempting  for  a  private  member  than 
to  propose  an  expenditure  of  public  funds  which  will  be  pop- 
ular with  his  constituents,  and  of  which  they  will  only  have 
to  pay  an  imperceptible  proportion.  The  natural  result  is 
waste  and  extravagance,  if  not  something  worse ;  and  the 
British  rule  is  so  strict,  that  not  even  the  House  of  Com- 
mons, as  a  whole,  can  do  more  in  this  direction  than  respect- 
fully address  the  Crown,  inviting  it  to  place  a  particular 
item  "  on  the  estimates,"  and  expressing  the  willingness  of 
the  House  to  vote  the  required  amount,  if  asked. 

The  "  Budget  Speech  " 

Thus  the  presentation  of  the  annual  estimates  of  receipts 
and  expenditure,  commonly  known  as  the  "  Budget  speech,"  ^ 
is  one  of  the  critical  items  of  the  Government  programme, 
and  is  the  subject  of  long,  secret,  and  minute  preparation 
at  "  The  Treasury,"  i.e.  the  office,  presently  to  be  described 
(pp.  196—199),  in  which  the  financial  work  of  the  Govern- 
ment is  done.  Secrecy  is  necessary,  in  order  to  prevent  pres- 
sure and  evasion  by  powerful  persons  whose  interests  are 
likely  to  be  affected  by  the  proposed  measures ;  and,  with 
the  latter  object,  the  Budget  speech  is  never  begun  in  the 
House  until  business  in  the  Government  revenue  offices  {e.g. 
the  Customs)  has  closed  for  the  day.     The  Chancellor  of  the 

'  The  name  "Budget"  is  said  to  have  been  derived  from  a  financial  pamphlet 
entitled  "The  Budget  Opened,"  published  under  the  Ministry  of  Sir  Robert 
Walpole. 


152     WORK   OF    THE    IMPERIAL   PARLIAMENT 

Exchequer  then,  in  a  speech  of  some  length,  sums  up  the 
financial  position,  giving  a  sketch  of  the  revenue  and  expen- 
diture for  the  previous  year  (April  to  April),  noting  items 
in  which  the  estimates  or  forecasts  for  that  year  have  been 
exceeded  or  diminished,  forecasting  the  requirements  of  the 
current  year,  and  estimating  what  new  taxes  will  be  required 
in  order  to  meet  them.  This  is  always  necessary;  because, 
though  most  items  of  revenue  go  on  from  year  to  year  un- 
der permanent  Acts  of  Parliament  {e.g.  Death  Duties,  or 
taxes  on  property  passing  on  death),  the  House  is  always 
very  careful,  as  before  explained  (p.  31),  to  leave  a  large 
deficit,  which  will  compel  Ministers  to  come  next  year  with 
fresh  demands  for  taxation,  and  thus  give  the  House  an  op- 
portunity of  criticizing  their  conduct  in  office. 

The  "  Gibson  Bowles  "  Act 

Until  very  recently,  the  "  Budget  "  speech  always  ended 
with  a  curious  proposal,  the  effect  of  which  requires  a  word 
of  explanation,  even  though  it  has  now  disappeared.  The 
speech, is  always  watched  with  particular  care  by  the  class 
of  merchants  engaged  in  foreign  trade,  especially  those  who 
import  such  articles  as  tea,  wine,  rum,  tobacco,  and  the  like, 
upon  which  Customs  duties  are  levied  at  the  ports.  These 
duties,  especially  the  duties  on  tea  and  tobacco,  are  largely 
relied  upon  by  the  Chancellor  of  the  Exchequer,  in  normal 
times,  to  "  balance  "  his  Budget,  i.e.  to  make  up  the  deficit 
before  referred  to.  Of  course  these  duties  are,  in  ordinary 
times,  really  paid  out  of  the  money  of  the  consumer  of  the 
articles  thus  taxed ;  because  the  importing  merchant  immedi- 
ately adds  the  amount  of  them  to  the  prices  which  he  charges 
for  his  goods.  But  there  are  always  large  stocks  of  these 
articles  lying  "  in  bond  "  at  the  Customs  warehouses,  i.e. 
waiting  there  until  the  importers  shall  see  fit  to  pay  the  Cus- 
toms duties.  If,  therefore,  an  importer  could  be  certain,  or 
even  fairly  sure,  that  an  increased  duty  was  going  to  be 
placed  on  tea,  in,  say,  three  months  (about  the  time  it  usually 
takes  to  pass  a  Budget  into  law)  he  could  immediately  take 


THE    "GIBSON    BOWLES"    ACT  153 

"  out  of  bond  "  an  enormous  amount  of  tea  at  the  old  lower 
rate  of  duty,  pretend  to  his  customers  that  he  had  paid  the 
extra  duty,  charge  them  with  it,  and  put  the  money  in  his 
own  pocket,  thus  defrauding  both  the  Exchequer  and  the 
public.  To  prevent  practices  of  this  kind,  the  Chancellor 
of  the  Exchequer,  at  the  conclusion  of  his  speech,  would  ask 
the  House  to  resolve  that,  if  the  proposed  new  taxes  were 
passed  into  law,  they  should,  contrary  to  the  usual  rule  of 
legislation,  be  made  payable,  not  from  the  date  when  the 
Act  imposing  them  received  the  royal  assent,  but  from  the 
date  of  the  Budget  speech.  This  resolution  was  always  car- 
ried at  once;  and,  thereupon,  the  Customs  authorities  would 
insist  on  payment  of  the  new  taxes  at  once  on  all  goods  taken 
out  of  bond  —  undertaking,  of  course,  to  return  the  differ- 
ence, if  Parliament  finally  refused  to  impose  them.  If  the 
new  proposals  related  to  income  tax,  banks  and  other  insti- 
tutions entrusted  with  the  payment  of  interest  or  dividends 
{i.e.  earnings  of  shares)  would  deduct  "  at  the  source  "  the 
new  income  tax  also. 

But  these  two  practices  were  always  a  puzzle  to  students 
of  the  British  Constitution,  whether  theoretical  or  practical ; 
for  they  had  always  been  taught  that  it  was  a  fixed  rule  of 
that  Constitution,  that  taxes  could  only  be  levied  under  the 
authority  of  a  complete  Act  of  Parliament.  Accordingly,  in 
the  year  1912,  Mr.  Gibson  Bowles,  at  one  time  a  well-known 
member  of  Parliament,  determined  to  raise  the  question,  by 
suing  the  Bank  of  England  to  get  back  income  tax  deducted, 
on  this  ground,  from  the  interest  payable  to  him  on  some 
Irish  Loan  Stock.  He  succeeded  in  his  action;  but  the  im- 
mediate result  was  the  passing  of  the  Provisional  Collection 
of  Taxes  Act  of  1913,  which,  with  certain  important  reser- 
vations, provides  that  whenever  the  House  of  Commons  re- 
solves, in  Committee  of  Ways  and  Means,  that  it  is  expedient 
that  any  proposed  variation  or  renewal  of  existing  customs 
or   excise  ^    duties,    or    income    tax,    shall    have    "  statutory 

^  I.e.  duties  on  the  manufacture  within  the  kingdom,  of  such  articles  as 
whisky,  patent  medicines,  motor  spirit,  and  mineral  waters,  or  on  the  sale  of 


154     WORK    OF    THE    IMPERIAL    PARLIAMENT 

force,"  all  authorities  usually  collecting  such  duties  or  tax 
may  begin  to  collect  them  at  once,  subject  to  liability  to  re- 
fund, if  the  proposals  are  not  passed  into  law  within  a  lim- 
ited time. 

Mention  of  the  Committee  of  Ways  and  Means  brings  us 
to  another  important  rule  of  the  House  of  Commons  regard- 
ing finance.  For,  by  a  Standing  Order  more  than  two  hun- 
dred years  old,  the  House  has  resolved  not  to  proceed  upon 
any  Bill  for  grant,  or  for  releasing  or  compounding  Crown 
debts,  but  (i.e.  except)  in  Committee  of  the  whole  House. 
There  are,  in  fact,  two  Committees  of  the  whole  House  spe- 
cially concerned  with  finance,  viz.  the  Committee  of  Ways 
and  Means  and  the  Committee  of  Supply;  though  they  are, 
of  course,  composed  of  the  same  persons. 

Committee  of  Supply 

In  the  Committee  of  Supply,  the  Government  proposals 
of  expenditure  are  discussed  one  by  one,  and,  of  course, 
usually  agreed  to ;  because  any  refusal  would  probably  be 
treated  as  a  vote  of  want  of  confidence  in  the  Government, 
which  would  involve  its  downfall.  But,  short  of  refusal,  the 
House  can  do  a  great  deal  in  Committee  of  Supply  to  ex- 
press its  opinion  of  the  policy  of  the  Cabinet.  Thus,  for  ex- 
ample, it  is  open  to  any  member,  when  the  salaries  of  any 
department  come  up  for  discussion,  to  move  to  "  reduce  the 
vote  by  £100,"  as  a  protest  against  alleged  defects  in  the 
working  of  that  department ;  and,  though,  eventually,  the 
motion  will  be  "  by  leave  of  the  House,  withdrawn,"  yet,  in 
the  discussion,  there  will  have  been  room  for  a  good  deal  of 
plain  speaking,  which  will  not  be  without  effect. 

Consolidated  Fund  Bills 

When  the  Committee  of  Supply  has  finished  a  sitting,  its 
Chairman  "  reports  progress  "  to  the  House,  i.e.  formally 
announces  to  the  Speaker  the  business  done ;  and  a  "  Con- 
tobacco  or  intoxicating  liquors.  Other  "licence  duties"  are  also  included  under 
this  head. 


FINANCE    MEASURES  155 

solidatcd  Fund  Bill  "  is  introduced,  from  time  to  time  dur- 
ing tJie  session,  granting  to  the  Crown  a  corresponding  sum 
out  of  the  "  Consolidated  Fund  "  of  the  United  Kingdom, 
i.e.  the  balance  and  accruing  revenue  of  the  Exchequer  from 
all  sources,  and  empowering  The  Treasury,  if  need  be,  to 
borrow  by  short  drafts,  known  as  "  Treasury  Bills,"  on  the 
security  of  the  fund,  any  sums  which  may  be  necessary  to 
make  good  the  grant.  These  Consolidated  Fund  Bills  pass 
through  all  the  stages  of  legislation  previously  described 
(pp.  143-145)  ;  but  being  short,  and,  virtually,  already 
agreed  upon,  they  very  quickly  become  law,  though  they  af- 
ford another  opportunity  for  criticism  of  the  Ministry.  Of 
course  they  are  "  Money  Bills,"  specially  protected  by  the 
Parliament  Act  of  1911  (p.  150). 

Committee  of  Ways  and  Means  and  Finance  Bills 

Meanwhile,  the  House,  sitting  as  a  Committee  of  Ways 
and  Means,  has  been  considering  how  the  deficit  of  the  year 
is  to  be  provided  for;  and  the  resolutions  passed  in  this  Com- 
mittee have  been  duly  "  reported  "  to  the  House  (p.  159), 
and  embodied  in  one  or  more  "  Finance  Bills,"  which,  like 
the  Consolidated  Fund  Bills,  have  to  go  through  all  the 
regular  stages,  subject  to  the  provisions  of  the  Parliament 
Act  (p.  150).  But,  as  these  Bills  often  impose  new  and 
searching  taxes,  they  give  rise  to  much  more  debate  than 
Consolidated  Fund  Bills,  and  are  often  not  passed  until 
nearly  the  end  of  the  session. 

The  Appropriation  Act 

Finally,  the  whole  financial  scheme  of  the  year  is  embodied 
in  the  "  Appropriation  Bill,"  which  contains,  in  its  numerous 
Schedules,  a  kind  of  balance  sheet  of  the  national  income  and 
expenditure;  though,  of  course,  it  is  impossible  to  go  much 
into  details,  even  in  ordinary  times,  whilst,  in  time  of  war, 
nothing  but  the  bare  totals  of  naval  and  military  expendi- 
ture are  given,  for  obvious  reasons.  In  such  a  time,  also, 
only  "  dummy,"  i.e.  blank,  estimates  for  such  expenditure  are 


156     WORK   OF    THE    IMPERIAL    PARLIAMENT 

presented  to  the  House;  and  large  "  votes  of  credit,"  or  reso- 
lutions authorizing  expenditure  of  round  sums,  are  asked 
for  and  obtained  at  frequent  intervals,  which  enable  the  Gov- 
ernment to  go  on  borrowing  money  to  meet  current  expenses. 

Supplementary  Estimates 

In  ordinary  times,  the  expenditure  of  each  financial  year 
is  provided  for  out  of  the  revenue  of  that  year ;  and  there  is 
another  important  order  of  the  House  which  forbids  money 
voted  for  one  year  to  be  expended  after  the  year  has  expired. 
Thus,  even  if  a  department  has  been  so  lucky  as  to  have  a 
balance  at  the  end  of  the  year,  it  cannot  hold  it  in  reserve, 
but  must  return  it  to  The  Treasury ;  unless,  of  course,  the 
House  gives  special  permission  to  the  contrary.  If  the  origi- 
nal estimates  should  have  proved  insufficient  for  the  service 
of  the  year,  "-supplementary  "  estimates  must  be  presented 
and  authorized ;  and,  in  times  of  strain,  even  a  supplementary 
Appropriation  Act  may  be  necessary. 

Criticism  of  Government 

Leaving  an  account  of  the  methods  of  collecting  and  ex- 
pending the  revenue  granted  by  Parliament,  and  the  impor- 
tant subject  of  "  auditing,"  or  examining  the  national  ac- 
counts, until  we  come  to  deal  with  The  Treasury,  under 
whose  direction  these  important  duties  are  mainly  (though 
not  entirely)  carried  out,  we  proceed  now  to  touch  briefly 
on  another  important  duty  of  Parliament,  viz.  supporting, 
criticizing,  or,  if  necessary,  defeating,  the  policy  of  the 
Crown;  always  remembering,  of  course,  that  no  criticism 
is  ever  directed  against  the  King  personally,  because,  in  all 
matters  political,  he  acts  on  the  advice  of  his  Ministers 
(pp.  40,  41).  Inasmuch  as  it  Is  of  the  essence  of  the  Parlia- 
mentary or  "  Cabinet  "  system  of  government,  as  understood 
throughout  the  British  Empire,  that  every  department  of 
State  should  have  at  its  head  a  Minister  who  is  a  member  of 
Parliament,  and  who  can  therefore  be  questioned  and  defend 


QUESTIONS    IN    PARLIAMENT  157 

his  department  in  Parliament,  it  will  be  perceived  that  every 
department  of  State  is  "  responsible  "  to  Parliament  in  a 
very  real  sense. 

"  Questions  " 

Ministers  occupy  seats  in  either  House  on  the  "  Treasury 
Bench,"  or  row  of  seats  on  the  floor  of  the  House,  on  the 
right  hand  of  the  Lord  Chancellor  or  Speaker  respectively; 
and  one  of  the  earliest  items  in  each  day's  proceedings  is  a 
formidable  array  of  questions  on  every  conceivable  subject, 
of  which  private  (i.e.  unofficial)  members  of  the  House  have 
given  notice.  The  object  of  the  notice  is,  of  course,  to  enable 
the  Minister  concerned  to  get  the  necessary  information 
(often  involving  great  investigation)  to  enable  him  to  reply 
to  his  questioner.  By  a  useful  reform  effected  a  few  years 
ago,  some  of  these  replies  are  given  in  writing,  and  published 
with  the  official  Reports  of  the  Debates  ("  Hansard  "),  which 
are,  of  course,  freely  accessible,  not  only  to  members,  but  to 
any  person  who  chooses  to  examine  them.  But  the  more 
important  are  answered  by  word  of  mouth  in  the  House,  in 
the  presence,  not  only  of  members,  but  of  strangers  occupy- 
ing one  of  the  various  "  galleries,"  which,  though  not  strictly 
part  of  the  House,  are  so  placed  that  all  the  proceedings  are, 
or  should  be,  audible  there. 

If  the  questioner  is  not  satisfied  with  the  Minister's  reply, 
he  often  puts  an  impromptu  "  supplementary "  question, 
"  arising  out  of  the  reply  " ;  and,  under  cover  of  such  a  pro- 
ceeding, or  even  in  the  wording  of  his  original  question,  he 
will  attempt  to  introduce  arguments  against  the  Minister's 
action.  But  the  Minister  attacked  may  defend  himself  by 
saying,  "  I  must  have  notice  of  that  question,"  or  Mr. 
Speaker  may  intervene  and  say :  "  The  hon.  member  must 
not  make  a  speech." 

Motion  for  Adjournment 

If,  however,  the  matter  is  of  importance,  and  the  House 
is  not  satisfied  with  the  Minister's  reply,  the  questioner  may 


158     WORK    OF    THE    IMPERIAL  .PARLIAMENT 

ask  leave  to  "move  the  adjournment  of  the  House";  and, 
if  forty  members  support  his  request,  a  debate  (nominally 
on  that  motion,  but  really  on  the  substance  of  the  question) 
takes  place;  and  the  Government,  which  formally  opposes 
the  motion,  if  defeated,  must  resign,  or  at  least,  the  Minister 
in  question  must. 

Resolution  op  Want  of  Confidence 

A  still  more  extreme  step  is  the  moving  of  a  formal  resolu- 
tion condemning  the  policy  of  the  Government,  either  as 
revealed  in  the  report  of  a  Royal  Commission,  i.e.  a  body  ap- 
pointed by  the  Crown  to  investigate,  independently  of  Par- 
liament, the  facts  of  an  alleged  failure  or  misconduct  by  a 
Government  department,  or  by  such  sources  of  information 
as  the  newspapers,  or  even  common  report.  In  still  more 
extreme  cases,  a  general  vote  of  want  of  confidence  in  the 
Government  may  be  moved.  As  a  rule,  opportunity  for  a 
debate  on  such  a  motion  will  only  be  granted  by  the  Govern- 
ment on  the  request  of  the  leader  of  a  substantial  party  in  the 
House;  and  the  power  which  the  Government  exercises  (not 
as  servants  of  the  Crown,  but  as  leaders  of  the  House  itself) 
of  arranging  the  "  programme  "  of  the  House,  enables  it  to 
prevent  the  time  of  Parliament  being  wasted  in  debating 
motions  of  this  kind  which  have  no  chance  of  success.  But 
no  Government  would  dare  to  deny  opportunities  for  such  a 
debate  if  it  were  really  the  desire  of  the  House  that  it  should 
take  place;  for  to  do  so  would  merely  result  in  the  House 
refusing  to  support  the  Government,  and,  in  the  case  of  the 
House  of  Commons,  at  least,  such  refusal  would  be  fatal  to 
the  Government's  existence.  It  has,  however,  long  been  the 
practice  for  Liberal  Governments  to  disregard  "  votes  of 
censure  "  by  the  House  of  Lords ;  because  they  are  always  in 
a  minority  there,  and  have  no  chance  of  getting  a  majority 
in  that  House  by  a  General  Election. 


"MOVEMENTS"    IN    PARLIAMENT  159 

Resignation  of  Government 

The  debate  on  a  resolution  expressing  a  want  of  confidence 
in  the  Government  is,  of  course,  a  test  of  strength  between  the 
Government  and  the  Opposition ;  and  if  the  resolution  is  car- 
ried, or  only  defeated  by  a  very  small  majority,  the  Govern- 
ment, in  the  former  case  invariably,  in  the  latter  usually, 
tenders  its  resignation  to  the  King,  or,  if  circumstances  are 
favourable  (p.  41),  requests  him  to  dissolve  Parliament,  that 
the  electors  may  decide  between  the  parties. 

Informal  Committees 

In  addition  to  these  occasional  steps,  and,  indeed,  with  a 
view  of  prompting  them,  many  groups  of  members,  or  "  com- 
mittees," are  voluntarily  formed  to  enable  their  members  to 
keep  a  vigilant  eye  on  the  action  of  the  Government  in  regard 
to  some  matter  in  which  those  members  are  specially  inter- 
ested, such  as  agriculture,  the  navy,  tariff  reform,  and  so 
on.  It  is  not  very  easy  to  be  sure  as  to  the  relationship  be- 
tween these  groups  (which  are  not,  of  course,  appointed  by 
either  House  itself),^  and  the  regular  party  organization 
(pp.  138,  139)  ;  but  it  will  usually  be  found  that  they  are 
composed  of  members  of  one  party,  and  they  may,  therefore, 
perhaps,  be  described  as  sub-parties,  formed  to  stimulate, 
or  "  ginger  up,"  their  own  nominal  chiefs. 

Secret  Sessions 

A  few  words  may,  perhaps,  here  be  usefully  said  about  a 
rare  form  of  Parliamentary  discussion  which  has,  of  late, 
owing  to  special  circumstances,  been  of  unusual  prominence. 
When  they  are  asked  questions  in  either  House,  Ministers 
may,  of  course,  refuse  to  answer,  on  the  ground  that  to  do 
so  would  be  against  the  interests  of  the  State,  by  revealing 
information  of  value  to  enemies,  open  or  secret.     Such  a  step 

^  Therefore,  of  course,  they  are  not  "committees  of  the  House." 


160     WORK   OF    THE    IMPERIAL   PARLIAMENT 

is,  obviously,  likely  to  be  of  frequent  occurrence  in  time  of 
war;  and  the  patriotism  of  the  House  will  usually  support 
the  Minister  in  such  a  refusal.  But  the  Government  may 
think  it  wise  to  take  the  House  into  its  confidence,  in  what  is 
called  a  "  secret  session."  It  is  not,  perhaps,  generally 
known  that  all  debates,  in  both  Houses,  are,  in  theory,  secret ; 
in  the  Lords,  because  they  are  the  hereditary  counsellors  of 
the  Crown,  in  the  Commons,  because,  at  an  early  date,  to 
protect  its  own  independence,  the  House  insisted  on  "  secrecy 
of  debate  "  as  a  guarantee  against  intimidation  by  the  King. 
Down  to  the  end  of  the  Civil  War,  this  secrecy  was  maintained 
in  actual  practice ;  and  it  is  only  from  private  diaries  of  mem- 
bers, which,  though  regarded  with  great  jealousy  by  the 
House,  were  in  fact  kept  from  the  middle  of  the  seventeenth 
century,  that  we  know  anything,  beyond  the  bare  official 
"  Journals,"  of  what  actually  took  place  in  debate.  With 
the  great  increase  of  interest,  however,  in  the  proceedings 
of  Parliament  which  grew  out  of  the  Civil  War,  and  the 
growth  of  newspapers  and  other  periodical  literature,  more 
and  more  the  fiction  of  secrecy  broke  down;  and  the  suspi- 
cion grew  also,  that  any  insistence  on  the  privilege  of  secrecy 
was  likely  to  be  at  least  as  much  in  the  private  and  corrupt 
interests  of  members  of  the  House,  as  in  the  desire  to  prevent 
interference  by  the  Crown.  At  last,  in  the  third  quarter  of 
the  eighteenth  century,  in  a  series  of  quarrels  between  the 
House  and  the  authorities  of  the  City  of  London,  who,  under 
the  guidance  of  the  notorious  John  Wilkes,  championed  the 
cause  of  the  printers  of  the  debates,  the  House  of  Commons 
was  definitely  defeated;  and  the  publication,  both  of  debates 
and  voting  lists,  became  a  regular  thing.  Still  the  House 
refused  to  recognize  publicity  as  a  right  of  the  citizen ;  though 
it  appointed  a  printer  who  supplied  copies  of  Parliamentary 
Papers  to  all  and  sundry,  and  even  allowed  a  Strangers' 
Gallery  to  be  built  on  the  edge  of  the  debating  chamber. 
Finally,  however,  in  1875,  the  right  to  exclude  strangers  was 
restricted  in  the  Commons  to  the  Speaker  or  the  Chairman 
of  Committees,  and  is  now  only  exercised  on  a  formal  resolu- 


MEMBERS    AND    THEIR    CONSTITUENTS     161 

tion  of  the  House,  moved  by  the  Prime  Minister  or  Minister 
of  the  Crown,  on  occasions  of  great  gravity. 

The  House  and  its  Constituencies 

As  a  final  example  of  the  way  in  which  Parliament,  and 
especially  the  House  of  Commons,  collects  and  expresses 
the  will  of  the  country,  we  may  refer  to  the  intimate  connec- 
tion which  exists  between  members  of  Parliament  and  their 
constituents.  The  member  or  candidate  for  the  constituency 
is  the  person  to  whom  the  average  elector  naturally  turns  for 
guidance  in  understanding  political  affairs.  True,  he  may 
read  the  accounts  of  Parliamentary  debates  in  the  news- 
papers ;  but  these  accounts,  less  extensive  than  they  formerly 
were,  especially  in  the  local  Press,  do  not  bring  home  very 
vividly  to  the  average  elector  the  meaning  of  things.  For  this 
he  looks  to  the  speeches  delivered  from  time  to  time  at  local 
meetings  by  his  member  or  candidate;  and  a  conscientious 
member  takes  his  duty  in  this  respect  very  seriously,  not  en- 
tirely in  his  own  interests.  Moreover,  he  is  in  daily  touch 
with  individual  constituents ;  and  his  letter-bag,  especially 
during  a  session  of  Parliament,  is  heavy.  It  is  true  that  this 
activity  has  its  doubtful  side ;  especially  when  it  is  concerned 
with  the  procuring  or  according  of  favours.  None  the  less, 
it  is  an  essential  element  in  the  working  of  really  popular 
government,  and  especially  in  the  ventilation  and  removal  of 
those  grievances  which,  if  left  unnoticed,  are  apt  to  rankle, 
and  produce  a  dangerous  feeling  of  unrest. 

Petitions 

From  the  earliest  times,  the  House  of  Commons  has  been 
a  centre  for  the  redress  of  grievances ;  and,  formerly,  "  re- 
ceivers and  triers  of  petitions  "  were  appointed  at  the  com- 
mencement of  each  session.  As  new  ways  of  dealing  with 
grievances  were  invented,  the  course  of  procedure  changed ; 
but  the  presentation  of  petitions  to  Parliament  on  public 
subjects  became  so  popular  in  the  sixteenth  and  seventeenth 
centuries,  that  a  Committee  of  Grievances  sat  regularly  dur- 


162     WORK   OF    THE    IMPERIAL    PARLIAMENT 

ing  those  years,  and,  in  1661,  an  Act  was  passed  to  prevent 
the  presentation  of  petitions  in  a  tumultuous  or  disorderly 
manner.  The  right  of  all  subjects  to  petition  the  King  was, 
however,  reaffirmed  in  the  most  unqualified  manner  by  the  Bill 
of  Rights  of  1689;  and,  in  substance,  all  the  more  important 
of  these  petitions  find  their  way  to  the  House  of  Commons, 
by  which  they  are  dealt  with  in  a  systematic  manner.  They 
can  only  be  presented  by  a  member  of  the  House,  and  are  not 
commonly  read  or  debated  upon,  but  merely  announced  in 
summary  form.  Nevertheless,  if  there  appears  to  be  real 
ground  for  action,  the  petition  might  be  discussed ;  and  upon 
it,  or  upon  any  matter  of  public  interest,  either  House  might 
pass  a  formal  resolution,  or  even  go  to  the  length  of  pre- 
senting a  formal  Address  to  the  Crown,  expressing  its  views 
as  to  the  course  to  be  adopted,  and  even  urging  action  in  a 
specified  direction.  Such  resolutions  need  not  by  any  means 
be  hostile  to  the  Government ;  they  may  even,  in  times  of 
crisis,  be  a  solemn  expression  of  the  united  determination  of 
the  nation  to  stand  behind  the  Crown  and  its  Ministers,  and 
support  their  policy.  Such  resolutions  and  Addresses  may 
come,  not  only  from  the  Imperial  Parliament,  but  also  from 
the  Parliaments  of  the  self-governing  Dominions,  and  the 
Legislative  Councils  of  the  Crown  Colonies  and  India. 
Everywhere  throughout  the  Empire  the  legislative  body  is 
the  natural  centre  of  popular  manifestation;  and,  the  more 
truly  "  representative "  it  is,  the  more  genuine  is  that 
manifestation. 

Judicial  Work  of  Parliament 

As  was  said  at  the  beginning  of  this  chapter,  Parliament 
is,  to  a  certain  extent,  concerned  with  judicial  proceedings; 
but  the  expression  "  High  Court  of  Parliament  "  should  not 
mislead  us  into  supposing  that  any  substantial  share  of  the 
ordinary  work  of  administering  justice  falls  to  its  lot.  The 
House  of  Lords,  it  is  true,  is,  as  we  shall  see,  the  supreme 
court  of  appeal  from  the  courts  of  the  United  Kingdom  in 
civil,  and,  to  a  very  slight  degree,  in  criminal  cases ;  but  in 


IMPEACHMENT  163 

this  capacity  it  is  hardly  a  part  of  Parliament,  and  sits 
independently  of  Parliament  as  a  whole.  The  House  of 
Lords  also  acts  as  a  tribunal  for  the  trial  of  peers  accused 
of  treason  or  felony,  and  as  a  quasi-judicial  "  Committee  of 
Privileges,"  when  there  is  a  disputed  claim  to  a  peerage. 

Impeachment 

But  the  only  judicial  proceeding  in  which  Parliament  as  a 
whole  takes  part  is  the  almost  obsolete  process  of  impeach- 
ment, before  alluded  to  (pp.  29,  80),  in  which  "  Managers," 
appointed  by  the  Commons,  appear  at  the  bar  of  the  House 
of  Lords,  and  accuse  persons  who  are  alleged  to  have  miscon- 
ducted themselves  in  an  official  capacity.  Even  this  proceed- 
ing is  not  strictly  judicial;  because,  in  spite  of  the  fact  that 
the  person  accused  is  charged  with  "  high  crimes  and  misde- 
meanours," no  crime  definitely  known  to  the  law  need  be,  or 
usually  is,  alleged  against  him.  If  the  Lords  find  the  accused 
guilty,  and  the  Commons  demand  judgment,  practically  any 
punishment  may  be  imposed,  regardless  of  precedent.  The 
proceedings  are,  in  fact,  in  the  nature  of  a  solemn  and  deliber- 
ate act  of  justice,  unfettered  by  precise  legal  rules. 

Intermissions  of  Parliament:  Dissolution 

In  concluding  this  chapter,  it  may,  perhaps,  be  well  to 
distinguish  between  three  kinds  of  interruptions  of  Parlia- 
mentary business  which  have  been  alluded  to  in  it,  and  which 
are  apt  to  be  confused.  As  has  been  before  remarked 
(p.  33),  the  Crown,  acting  on  the  advice  of  its  Ministers,  or, 
possibly  (p.  41),  on  its  own  initiative,  may  dissolve  Parlia- 
ment, i.e.  put  an  end  altogether  to  its  existence.  Needless  to 
say,  this  step,  though  it  does  not  affect  any  Bills  which  have 
actually  received  the  royal  assent,  puts  an  end  to  all  incom- 
pleted business ;  for,  by  a  General  Election,  the  membership 
of  the  House  of  Commons  may  be  completely  changed. 


164     WORK   OF    THE    IMPERIAL   PARLIAMENT 

Prorogation 

But,  at  the  end  of  the  Session,  i.e.  the  annual  meeting  of 
Parliament,  Parliament  is  prorogued  by  the  King  until  the 
next  assembling;  and  this  step  is  not  followed,  at  any  rate 
necessarily,  by  a  General  Election,  but  the  same  Parliament 
meets  again,  when  summoned  by  proclamation  after  the 
**  recess,"  which,  in  normal  times,  lasts  from  mid- August  to 
February.  Strange  to  say,  by  a  rule  the  reason  of  which  is 
not  apparent,  all  pending  business  likewise  drops  on  this 
occasion,  as  on  a  dissolution,  and  has  all  to  be  begun  again 
in  the  next  session. 

Adjournment 

Finally,  during  the  session,  each  House  adjourns  itself 
from  day  to  day,  or  over  the  week-end,  or  a  short  vacation, 
or  merely  for  a  few  hours,  by  simple  resolution.  This  step 
has  no  legal  effect  on  business,  which  is  taken  up,  according 
to  the  time-table  of  the  House,  which  is  regulated  by  the 
Standing  Orders,  just  where  it  left  off.  That  is  one  reason 
why,  during  a  war  or  great  crisis.  Parliament  is  not  pro- 
rogued, much  less  dissolved,  if  it  can  be  avoided.  It  is 
merely  adjourned  from  time  to  time,  ready  to  take  up  its 
work  again,  as  the  needs  of  the  moment  require. 


CHAPTER    VIII 

THE    FIGHTING    SERVICES 

As  has  been  before  pointed  out  (p.  4),  it  was  one  of  the 
oldest,  if  not  the  very  oldest,  duty  of  the  King  to  lead  his 
people  in  war ;  and  the  right  and  duty  of  the  Crown  to  train, 
equip,  and  control  a  sufficient  military  force  to  defend  his 
dominions  from  attack,  has  never,  except  in  time  of  revo- 
lution, been  denied.  But  the  common  sense  of  the  British 
people,  sharpened  by  experience,  has  not  been  blind  to  the 
dangers  which  might  attend  the  exercise  of  these  rights,  and 
has  devised  certain  safeguards  against  them.  Moreover,  the 
enormous  cost  of  modern  warfare,  and  even  of  preparation 
for  warfare,  has  long  rendered  it  impossible  for  the  Crown 
to  perform  its  military  duties  without  frequent  recourse  to 
Parliament  for  the  grant  of  money;  and  Parliament  has, 
not  unnaturally,  made  of  this  fact  a  powerful  lever  for  se- 
curing national  control  over  military  policy  and  administra- 
tion. The  King  and  his  advisers,  on  the  other  hand,  have 
wisely  seen,  that  a  hearty  national  co-operation  in  the  work 
of  providing  and  maintaining  the  fighting  services  is  far  more 
valuable  than  a  sullen  submission  to  autocratic  levy  of  men 
and  money.  The  result  has  been  a  series  of  arrangements 
which  form  an  important  part  in  the  government  of  the 
Empire. 

The  Royal,  Navy 

The  oldest  of  the  present  fighting  forces  of  the  Crown  of 
a  professional  character  is  the  Royal  Navy.  Owing  to  her 
insular  position,  England  has  been  from  time  to  time  engaged 
in  maritime  war  from  the  earliest  days  of  her  history;  and 
the  ill-omened  Ship-Money  Writs  issued  by  Charles  I  were 


166  THE    FIGHTING    SERVICES 

said  to  have  been  taken  from  precedents  used  before  the  Nor- 
man Conquest.  But  it  was  not  until  the  late  fourteenth  cen- 
tury that  a  general  system  was  established  for  the  naval 
forces  of  the  Crown  by  the  creation  of  the  office  of  Lord  High 
Admiral,  and  the  recognition  by  Parliament  of  the  King's 
right  to  require  the  services  of  sea-faring  men  for  the  Royal 
Navy  —  the  so-called  right  of  "  impressment."  This  right 
has  never  been  abandoned ;  and,  for  many  generations,  sailors 
who  were  perfectly  prepared  to  serve  in  the  Navy  insisted  on 
going  through  the  form  of  being  "  impressed,"  because  it 
was  attended  by  the  payment  of  bounties  wliich  they  pre- 
ferred to  regular  pay.  But,  for  the  last  century,  at  least, 
the  Royal  Navy  has  been  so  popular,  and  the  conditions  of 
pay  and  other  provisions  have  been  so  much  improved,  that 
service  in  the  Navy  has  been  voluntary. 

The  Tudor  Revival 

With  the  interest  in  maritime  affairs  aroused  by  the  great 
discoveries  of  the  fifteenth  and  sixteenth  centuries,  the 
growth  of  the  Royal  Navy  proceeded  apace,  especially  under 
the  Tudor  monarchs,  who  were  fully  alive  to  the  importance 
of  supremacy  at  sea ;  and  England  entered  upon  a  series  of 
Titanic  rivalries  with  Spain,  Holland,  and  France,  for  the 
acquisition  of  that  supremacy,  which  left  her,  or  rather  the 
British  Empire  into  which  she  had  expanded,  at  the  Peace  of 
1815,  the  first  Naval  Power  in  the  world.  Superb  as  have 
been  the  bravery  and  enterprise  of  British  sailors  in  acquir- 
ing that  position,  it  is  almost  equally  creditable  to  the 
moderation  and  good  sense  of  British  statesmanship,  that 
it  has  been  so  justly  and  wisely  used,  as  to  arouse  little 
jealousy  and  suspicion.  And  when  the  hour  of  supreme  trial 
came,  it  was  the  proud  lot  of  the  British  Navy  to  find  ar- 
rayed in  comradeship  with  it,  the  fleets  of  practically  all  the 
civilized  Powers  of  the  world,  with  the  exception  of  that 
which  had  thrown  down  a  sinister  challenge  to  its  existence. 


SEA    POWER  167 

The  Admiralty 

So  great  had  the  power  of  the  Lord  High  Admiral,  the 
head  of  this  miglity  force,  become,  even  in  the  seventeenth 
century,  that  we  find  Charles  I  adopting  the  practice  which, 
as  we  shall  see,  was  adopted  also  with  regard  to  the  great 
offices  of  Lord  High  Treasurer  and  Lord  Chancellor,  of 
"  putting  it  into  commission."  The  practice  was  quite  in 
accordance  with  the  views  of  the  Parliamentarian  party, 
who,  though  they  took  a  great  share  in  the  development  and 
improvement  of  the  English  Navy,  and  made  its  name  famous 
throughout  the  world,  had  no  love  for  great  officials ;  and, 
though  the  office  was  revived,  on  the  Restoration  of 
Charles  II,  for  the  King's  brother,  the  future  James  II, 
that  step  did  not  add  to  its  popularity,  and,  by  a  statute  of 
the  year  1690,  the  practice  of  putting  the  office  into  commis- 
sion was  regularized.  From  the  year  1708,  in  fact,  save  for 
the  brief  tenure  of  the  office  by  the  Duke  of  Clarence,  after- 
wards King  William  IV,  from  1827  to  1828,  there  has  been 
no  Lord  High  Admiral  of  England,  much  less  of  the  Empire; 
and  "  My  Lords  of  the  Admiralty  "  have  ruled  the  destinies 
of  the  Navy. 

Growth  of  Admiralty  Offices 

Meanwhile,  however,  the  growing  needs  of  the  Royal  Navy 
had  been  met  by  the  growth  of  an  administrative  system 
which  comprised  a  Navy  Board,  created  so  far  back  as  1546, 
a  Victualling  Board,  and  a  Treasurer  of  the  Navy,  all  act- 
ing in  subordination  to  the  Admiralty ;  and,  though  Parlia- 
ment had  never  shown  any  jealousy  of  the  Navy  at  all  corre- 
sponding with  that  which,  as  we  shall  see  (pp.  173,  174), 
manifested  itself  in  connection  with  the  army,  it  had,  by  a 
great  statute  of  the  year  1661,  empowered  the  Crown  to 
issue  "  Articles,"  or  regulations,  for  the  control  and  disci- 
pline of  the  Navy,  and  to  appoint  naval  courts  martial,  or 
special  tribunals  for  the  trial  and  punishment  of  offences  by 
officers  and  men  of  the  fleet.     This  latter  jurisdiction  must 


168  THE    FIGHTING    SERVICES 

be  carefully  distinguished  from  the  jurisdiction  exercised  by 
the  "  Court  of  Admiralty  "  over  all  offences  committed  by 
British  subjects  on  British  ships  on  the  high  seas,  and  over 
certain  purely  civil  business,  such  as  salvage  claims  and 
actions  against  ships,  which  jurisdiction  had  been  the  subject 
of  fierce  dispute  in  the  sixteenth  and  seventeenth  centuries, 
and  has  nothing  to  do  with  the  discipline  of  the  Royal  Navy. 

Reforms  of  1832 

In  the  year  1832,  the  management  of  the  Navy  was  placed 
substantially  on  its  present  basis  (though  there  have  been, 
and  constantly  are,  changes  of  detail),  by  Sir  James 
Graham,  who  procured  the  abolition  of  the  semi-independent 
Navy  and  Victualling  Boards,  and  the  transfer  of  their  duties 
to  the  Admiralty  Board.  Thus  the  whole  business  of  the 
Navy,  military  as  well  as  civil,  became  concentrated  in  the 
hands  of  the  "  Lords  Commissioners  for  executing  the  office 
of  Lord  High  Admiral,"  who  are  appointed  by  Letters 
Patent.  The  number  of  such  Commissioners  varies  from 
time  to  time,  according  to  the  requirements  of  the  situation ; 
but  the  Board  always  comprises  a  "  First  Lord,"  a  "  First " 
and  other  "  Naval  Lords,"  and  one  or  more  "  Civil  Lords." 
In  addition,  a  Parliamentary,  a  Financial,  and  a  Permanent 
Secretary,  are  appointed  members  of  the  Admiralty  Board, 
but  not  by  the  Letters  Patent  appointing  the  Lords 
Commissioners. 

Working  of  the  Board  of  Admiralty 

Unlike  the  Treasury  Board  (p.  198),  which  now  never 
meets,  the  Admiralty  Board  has  never  ceased  since  1832, 
except  for  a  brief  and  bad  period,  to  hold  regular  and  fre- 
quent meetings  at  which  genuine  business  is  genuinely  dis- 
cussed. But  it  must  not  be  supposed  that  the  decisions  of 
the  Board,  like  those  of  an  ordinary  committee,  are  arrived 
at  by  the  simple  process  of  counting  votes.  Though  the 
Lords  Commissioners  arc  all  legally  on  the  same  footing,  and 


THE    ADMIRALTY  169 

any  two  of  them  can  sign  for  "  The  Admiralty,"  the  "  First 
Lord,"  who  is  always  a  member  of  the  Ministry,  and,  in  ordi- 
nary times,  of  the  Cabinet,  is,  and  is  intended  to  be,  much 
more  than  a  mere  chairman ;  because  he,  and  he  alone,  is 
directly  responsible  to  King  and  Parliament  for  the  admin- 
istration of  the  navy.  This  fact  was  always  understood 
after  the  reorganization  of  1832;  but  it  was  put  beyond 
question  by  two  Orders  in  Council  of  1869  and  1872  re- 
spectively, which  definitely  subordinated  the  other  members 
of  the  Commission  to  the  First  Lord,  and  gave  him  power  to 
arrange  the  distribution  of  business  among  his  colleagues. 
Thus,  the  decisive  voice  at  the  Board  is  with  the  First  Lord, 
who,  if  his  colleagues  attempted  to  overrule  him,  would  de- 
cline to  take  responsibility  for  their  decision,  and  either 
resign  his  office  (which  would  mean  the  dissolution  of  the 
Commission),  or  procure  the  dismissal  by  the  Cabinet  of 
any  colleague  who  persisted  in  opposing  him.  The  position 
of  the  "  Junior  Lords  "  of  the  Admiralty  is,  therefore,  anom- 
alous. They  are,  in  theory,  responsible  for  the  decisions  of 
the  Board,  but  cannot  control,  though,  doubtless,  they  can 
and  do  influence,  its  policy.  The  bulk  of  their  time  is,  prob- 
ably, occupied  with  the  immense  and  important  duties  of 
the  administrative  work  entrusted  to  them  by  the  Minute  of 
the  First  Lord  —  the  recruiting  and  management  of  the 
men  of  the  navy  and  the  education  of,  the  issue  of  commissions 
to,  and  promotions  of,  its  officers,  the  building,  manning, 
and  moving  of  the  ships,  the  construction  of  naval  docks 
and  harbours,  the  maintenance  and  working  of  the  "  yards  " 
or  works  in  which  the  vast  machinery  of  construction  and 
repair  goes  on,  the  appointment  and  duties  of  the  civilian 
staff,  and  the  great  business  of  finance.  It  is  in  these  mat- 
ters that  the  expert  does  his  important  work.  The  Parlia- 
mentary and  Financial  Secretaries  to  the  Admiralty  may 
sit  in  the  House  of  Commons ;  but  the  other  members  of  the 
Board,  even  if  they  cannot  all  be  called  "  permanent,"  are 
excluded  from  the  House  by  the  operation  of  the  Place  Act 
of  1707  (p.  96). 


170  THE    FIGHTING    SERVICES 

Naval  Enlistment  and  Discipline  Acts 

As  has  been  before  remarked  (p.  167),  there  has  never 
been  any  constitutional  check  on  the  maintenance  or  recruit- 
ment of  the  navy,  other  than  that  imposed  by  the  necessity 
of  getting  money  for  these  objects  from  Parliament.  But 
the  old  haphazard  methods  of  recruiting  have  been  replaced 
by  a  scientific  and  highly  successful  system  under  the  pro- 
visions of  the  Naval  Enhstment  Acts,  which  make  provision 
for  the  period  of  service,  discharge,  and  pension  of  the  men ; 
a  special  provision  being  that  no  man  can  be  compelled  to 
serve  for  more  than  five  years.  Likewise,  also,  the  mainte- 
nance of  discipline  in  the  navy,  originally  a  matter  of  un- 
disputed prerogative,  is  now  governed  by  the  provisions  of 
the  Naval  Discipline  Acts,  which  incorporate,  with  many 
additions,  the  Articles  of  War  issued  by  the  Crown  under  the 
provisions  of  the  Act  of  1661  (p.  167),  and,  further,  author- 
ize the  creation,  when  occasion  requires,  of  naval  "  courts 
martial,"  comprised  of  officers  of  the  Fleet,  which  have  power 
to  try  officers  and  men  of  the  Royal  Navy  for  offences,  not 
only  against  naval  discipline,  but  also  against  the  common 
law.  Further,  the  Acts  make  provision  for  "  courts  of  en- 
quiry," also  of  a  naval  character,  for  the  purpose  of  investi- 
gating events  which  demand  explanation,  though  no  one 
can  at  first  be  accused  of  responsibility  for  them.  Unlike  the 
soldier  (p.  190),  the  sailor  in  the  Roj'^al  Navy  is,  therefore, 
practically  (though  not  legally)  exempt  from  the  jurisdic- 
tion of  the  ordinary  courts  of  justice;  and  this  practical 
exemption  is,  no  doubt,  largely  due  to  the  fact  that  he  has 
very  few  opportunities  of  inflicting  harm  on  the  private  citi- 
zen, while  to  remove  him  from  his  ship  or  squadron  for  pur- 
poses of  trial,  might  involve  unnecessary  inconvenience  and 
expense.  Needless  to  say,  the  Rule  of  Law  (p.  34)  previously 
described,  applies  to  the  sailor  as  much  as  to  the  soldier. 


NAVAL    RESERVES  171 


Naval  Reserves 


In  addition  to  the  regular  officers  and  men  of  His  Maj- 
esty's Navy,  on  full  pay,  amounting,  at  the  outbreak  of  the 
European  war,  to  150,000,  there  are  more  than  one  power- 
ful adjunct  which  have  proved  their  great  worth  in  war. 
There  is,  for  example,  the  Royal  Naval  Reserve,  constituted 
under  an  Act  of  Parliament  of  1859,  and  merged  into  the 
Royal  Fleet  Reserve  by  the  Naval  Reserve  Act  of  1900.  By 
the  original  scheme,  the  members  of  the  R.N.R.  enlisted  for 
a  period  of  five  years,  and  were  liable  to  twenty-eight  days 
of  training  in  each  year;  but  these  requirements  were  a  good 
deal  stiffened  by  the  Act  of  1900,  and  all  limit  of  numbers 
in  this  force  was  removed  by  the  Naval  Forces  Act  of  1903, 
which  also  sanctioned  the  creation  of  a  body  of  Royal 
Marine  Volunteers,  available  for  service  beyond  the  four 
seas.  It  is  under  the  provisions  of  these  Naval  Reserve  Acts 
that  the  invaluable  auxiliaries  of  the  regular  Fleet  knowTi 
familiarly  as  the  "  mine-sweepers  "  were  organized.  Then, 
too,  it  may  be  noted  that  the  men  of  the  Coast  Guard  (a  sys- 
tem of  coast  defence  which  has  been  in  existence  since  the 
reign  of  Edward  I)  and  other  seafaring  men  in  the  Govern- 
ment service,  as  well  as  navy  pensioners,  may,  in  case  of 
emergency,  be  called  upon  to  serve.  Inasmuch  as  these  all 
are,  or  have  been,  professional  sailors,  the  value  of  their 
services  is  very  great. 

Land  Forces 

As  has  already  been  remarked  (p.  6),  the  earliest  land 
forces  of  the  Crown  were  of  the  nature  of  civilian  soldiers, 
or  militia,  only  liable  to  serve  for  defence,  and,  according 
to  strict  theory,  only  in  their  own  counties. 

The  Feudal  Array 

When  the  Norman  Conquest  had  shown  the  need  of  a  pro- 
fessional army,  it  was  raised  on  feudal  principles,  by  making 
the  liability   to   service   dependent   upon   the   holding   of   a 


172  THE    FIGHTING    SERVICES 

landed  fief  or  estate.  But  the  feudal  array  thus  provided 
for  soon  ceased  to  be,  if  it  ever  was,  a  "  standing  "  or  per- 
manently embodied  army;  its  members  being  only  bound  to 
serve  the  King  for  forty  days  in  each  year. 

Commissions  of  Array 

For  this  and  other  reasons  it  soon  became  obsolete;  and, 
after  some  attempted  schemes  of  Edward  I,  which  have  not 
received  the  attention  they  deserve,  the  feudal  levy  was  re- 
placed by  "  commissions  of  array,"  i.e.  virtually,  armies  of 
professional  soldiers  recruited  by  their  immediate  officers,  by 
virtue  of  royal  commissions,  or  authorities,  issued  to  them 
by  the  King.  These  commissions  were  intensely  unpopular, 
on  account  both  of  the  character  of  the  soldiers  [soUdarii 
or  "  shilling-men  ")  raised  by  them,  and  of  the  high-handed 
methods  used  by  the  holders  of  them  to  procure  recruits. 
Many  Acts  of  Parliament  were  passed  to  prohibit  such  meth- 
ods, as  well  as  the  resulting  steps  of  "  billeting  "  or  compul- 
sory lodging  of  such  men  (usually  strangers  to  the  locality), 
and  the  granting  of  unusual  powers  of  discipline  and  trial  to 
the  officers  receiving  the  commissions.  Nevertheless,  the  diffi- 
culty of  finding  the  money  to  pay  them  remained  the  chief 
legal  obstacle  to  the  raising  of  such  troops ;  until  the  use 
made  of  commissions  of  array  by  the  Stuart  Kings  to  over- 
awe their  subjects,  and  establish  autocratic  government,  led 
the  champions  of  freedom  definitely  to  challenge  their 
legality. 

The  practice  of  issuing  commissions  for  trial  by  "  martial 
law "  was  the  more  odious,  in  that  it  was  extended  by 
James  I  and  his  son,  not  merely  to  professional  soldiers,  but 
to  other  "  dissolute  persons  .  .  .  for  any  robbery,  felony, 
mutiny  or  other  outrage,  or  misdemeanour,"  i.e.  to  private 
citizens  for  offences  known  to,  and  properly  triable  by,  the 
ordinary  law  courts. 


PETITION    OF    RIGHT  — BILL    OF    RIGHTS     173 

The  Petition  of  Right 

After  various  protests,  the  Parliament  of  1628  procured 
the  acceptance  by  the  King  of  the  famous  statute  known 
as  the  "  Petition  of  Right,"  because  it  declined  to  admit 
that  it  was  creating  new  law,  and  professed  to  be  merely  a 
re-affirmation  of  existing  law.  By  that  Act,  which  is  still 
in  force,  after  a  full  and  explicit  recital  of  these  and  other 
grievances.  His  Majesty  is  prayed  "  to  remove  the  said  sol- 
diers and  mariners,  and  that  your  people  may  not  be  so  bur- 
dened in  time  to  come ;  and  that  the  aforesaid  commissions 
for  proceeding  by  martial  law  may  be  revoked  and  annulled ; 
and  that  hereafter  no  commissions  of  like  nature  may  issue 
forth  to  any  person  or  persons  whatsoever  ";  and  His  Maj- 
esty, despite  his  obvious  unwillingness,  was  constrained  to 
grant  that  "  right  shall  be  done  as  is  desired."  It  should  be 
particularly  noticed,  in  view  of  subsequent  and  recent  hap- 
penings, that  the  prohibition  of  trial  by  martial  law  (as  to 
the  nature  of  which  something  will  hereafter  be  said)  was 
not  by  the  Petition  of  Right  restricted  to  time  of  peace,  in 
spite  of  a  suggestion  to  that  effect  by  the  House  of  Lords, 
made  at  the  time  of  its  passing. 

The  occurrence  of  the  Civil  War  shortly  after  the  passing 
of  the  Petition  of  Right  somewhat  masked  the  importance 
of  that  document  for  a  time ;  but  it  by  no  means  altered  the 
attitude  of  the  nation  towards  a  professional  army.  For 
even  Cromwell's  New  Model,  which  included  the  famous 
"  Ironsides,"  notwithstanding  its  glorious  exploits  and  its 
Parliamentary  character,  was  intensely  unpopular;  and  the 
very  success  of  Cromwell  had  an  obvious  effect  on  military 
arrangements  down  to  the  great  French  War  at  the  end  of 
the  eighteenth  century. 

The  Bill  of  Rights 

Accordingly,  when  James  II  showed  a  disposition  to  Imi- 
tate the  policy  of  his  father,  by  establishing  a  camp  of  pro- 
fessional soldiers  on  Hounslow  Heath  to  overawe  London, 


174  THE    FIGHTING    SERVICES 

his  subjects  deposed  him,  and,  in  the  great  Bill  of  Rights,  in 
1689,  in  which  they  offered  the  throne  to  William  of  Orange 
and  his  wife,  they  made  it  an  express  condition  of  their 
offer,  that  "  the  raising  or  keeping  a  standing  army  within 
the  kingdom,  in  time  of  peace,  unless  it  be  with  the  consent 
of  Parliament,  is  against  law."  This  statute,  likewise,  re- 
mains on  the  Statute  Book;  and  thus  the  legal  position  of 
the  professional  land  soldier  is,  obviously,  different  from 
that  of  his  maritime  comrade,  because,  quite  apart  from 
questions  of  ways  and  means,  the  Crown  does  an  unlawful 
act,  and  all  persons  who  take  part  in  the  proceedings  do 
unlawful  acts,  if  they  equip  a  single  regular  soldier  within 
the  kingdom  (which  does  not  include  India),  in  time  of  peace, 
without  the  express  sanction  of  Parliament. 

It  is,  however,  one  of  the  strangest  facts  in  English  his- 
tory, that  the  very  event  which  rendered  the  existence  of  a 
standing,  or  "  regular  "  army  within  the  realm,  prima  facie, 
illegal,  also  rendered  it  necessary.  But  the  apparent  oddity 
is  easily  explained.  Naturally,  the  dethroned  monarch  and 
his  descendants  would  not  submit  to  the  loss  of  their  inherit- 
ance without  an  effort;  and  there  were  many  rulers  (espe- 
cially the  powerful  King  of  France)  only  too  willing  to  make 
use  of  the  Stuart  or  Jacobite  claims,  to  embarrass  William 
of  Orange,  whom  they  hated  as  the  champion  of  Protestant- 
ism and  liberty. 

"  Mutiny  Acts  " 

Accordingly,  it  became  necessary  to  provide  in  some  way 
for  the  suspension  of  the  provisions  of  the  Petition  of  Right 
and  the  Bill  of  Rights  above  quoted ;  and  this  was  done  by 
the  passing  of  annual  "  Mutiny  Acts,"  which,  after  expressly 
repeating  or  "  reciting  "  these  provisions,  declared  that,  for 
one  year,  they  should  be  in  abeyance.  At  first  these  Mutiny 
Acts  did  not  go  further;  but,  in  1712,  they  began  to  fix  defi- 
nitely the  number  of  soldiers  which  might  be  raised  by  the 
Crown  under  their  permission,  and  this  practice  has  contin- 
ued ever  since.     About  that  time,  also,  began  the  practice, 


THE    REGULAR    ARMY  175 

easy  but  not  very  straightforward,  of  attaching  the  words 
"  in  time  of  peace,"  which,  as  we  have  seen,  were  really  in  the 
clause  of  the  Bill  of  Rights  (p.  173),  which  deals  with  a 
standing  army,  to  the  "  recital  "  of  the  clauses  of  the  Peti- 
tion of  Right  (p.  173)  dealing  with  martial  law  and  billet- 
ing, in  which  they  do  not  occur;  and  this  practice,  being 
embodied  in  Acts  of  Parliament,  may  be  said  to  justify  tlie 
view,  that  the  limitation  to  "  time  of  peace  "  must  be  now 
read  into  the  Petition  of  Right,  though  it  certainly  does  not 
justify  the  statement  that  "  the  framers  of  the  Petition  of 
Right  knew  well  what  they  meant  when  they  made  a  condi- 
tion of  peace  the  ground  of  the  illegality  of  constitutional 
procedure." 

The  Army  Act 

The  Mutiny  Acts  extend  in  a  long  and  almost  unbroken 
series  from  1689  to  the  middle  of  the  nineteenth  century,  as 
standing  witnesses  to  the  growing  control  of  Parliament 
over  the  regular  army;  for  they  increase  as  they  go  on  in 
complexity  and  length,  by  the  insertion  of  many  clauses  deal- 
ing with  the  discipline,  training,  billeting,  and  general  man- 
agement of  the  regular  troops.  Thus  an  elaborate  code  of 
"  military  law,"  very  different  from,  though  it  is  often  called 
by  the  same  name,  the  "  martial  law  "  prohibited  by  the  Peti- 
tion of  Right,  came  into  existence ;  but  it  is  applicable  only 
to  "  regular  "  soldiers,  including  the  militia  or  Territorials 
when  "  embodied  "  or  called  out  for  service.  At  length,  in 
the  last  quarter  of  the  nineteenth  century,  a  very  useful  step 
was  taken.  What  may  be  called  the  "  permanent  "  parts  of 
military  law  (though  of  course  they  are  altered  from  time 
to  time)  were  separated  from  the  temporary  provisions  which 
suspend  the  Petition  of  Right  and  the  Bill  of  Rights,  and  em- 
bodied in  a  permanent  statute,  commonly  called  the  "  Army 
Act,  1881,"  but  more  properly  "  The  Army  Act,"  because, 
by  an  admirable  arrangement,  when  any  alteration  is  made 
in  its  provisions  by  an  amending  Act,  that  alteration  is  im- 
mediately incorporated  into  the  Act  itself,  so  that  the  Brit- 


176  THE    FIGHTING    SERVICES 

ish  officer  who  has  to  work  under  it  knows  exactly  where 
he  is.  The  odd  thing  is,  that  this  "  permanent  "  statute  is 
in  a  very  true  sense  "  annual  " ;  because  it  is  re-enacted  or 
revived  year  by  year  by  the  Army  (Annual)  Act,  which  has 
taken  the  place  of  the  original  Mutiny  Acts  of  William  and 
Anne,  and  is,  usually,  quite  short.  It  is  this  Act,  which  we 
will  continue  to  call,  for  clearness,  the  "  Mutiny  Act,"  which 
authorizes  exactly  the  maximum  number  of  regular  troops 
which  the  King  may  levy  and  maintain ;  and  it  is  remark- 
able, that  Parliament  has  continued  to  pass  this  Act  during 
the  great  war,  notwithstanding  that  the  prohibition  of  the 
Bill  of  Rights  as  to  a  standing  army  is  confined  to  "  time  of 
peace."  This  annual  Mutiny  Act,  as  has  been  said,  also  sus- 
pends the  operation  of  the  clauses  about  martial  law  and  bil- 
leting in  the  Petition  of  Right,  and,  if  necessary,  makes 
alterations  in  the  "  permanent "  Army  Act,  which  are  then 
incorporated  into  the  latter  statute. 

Discipline  of  the  Regular  Army 

The  management  and  control  of  the  army  have,  as  has 
been  said  (p.  6),  always  been  recognized,  except  in  times  of 
revolution,  as  being  the  peculiar  prerogative  of  the  King. 

Articles  of  War 

Accordingly,  soon  after  the  practical  necessity  of  a  per- 
manent standing  army  had  become  apparent,  at  the  end  of 
the  seventeenth  century,  the  King  began  to  issue  from  time 
to  time  "  Articles  of  War  "  for  the  government  of  the  troops. 
These  Articles  dealt  mainly  with  minor  offences ;  because  the 
Mutiny  Acts  themselves,  as  a  rule,  dealt  with  capital  offences, 
whereby  men  might  be  "  forejudged  of  life  and  limb."  But, 
at  the  beginning  of  George  I's  reign,  it  was  thought  better 
to  put  this  royal  prerogative  on  a  constitutional  footing; 
and  so,  by  an  Act  of  Parliament  of  the  year  1717,  the  King 
was  definitely  empowered  to  issue  Articles  of  War  —  a  fact 
which  does  not,  of  itself,  deprive  him  of  his  independent 
prerogative. 


THE    "KING'S    REGULATIONS"  177 

"  King's  Regulations  " 

As,  however,  the  provisions  of  the  Mutiny  Acts  became 
more  and  more  detailed,  the  scope  of  the  King's  prerogative 
in  this  respect,  whether  derived  from  common  law  or  the 
Acts  themselves,  became,  in  practice,  more  and  more  re- 
stricted; because,  of  course,  the  King  cannot,  by  Articles  of 
War,  alter  the  provisions  of  an  Act  of  Parliament.  The 
"  King's  Regulations,"  therefore,  are  concerned  mainly  with 
the  minor  affairs  of  military  life,  such  as  the  soldier's  uni- 
form and  equipment,  the  etiquette  of  the  barracks  and  the 
mess-room,  the  formalities  required  in  communicating  with 
the  authorities,  and  so  on ;  while  the  really  important  rules 
affecting  the  soldier  —  the  terms  of  his  enlistment,  his  billet- 
ing and  transport,  and  his  trial  and  punishment  for  alleged 
offences  —  are  governed  by  the  Army  Act.  This  is  an  im- 
portant fact,  in  view  of  a  great  constitutional  question  which 
must  hereafter  be  discussed ;  but  the  great  prerogative  power 
which  still  belongs  to  the  Crown  in  army  administration  was 
vividly  illustrated  by  the  step  taken  in  1872,  when  the  sale 
of  commissions,  which  for  long  had  been  openly  practised 
under  Army  Regulations,  was  abolished  by  Royal  Warrant. 

Parliamentary  Control  of  Army 

It  was  long  before  Parliament  obtained  any  further  hold 
over  the  army  than  that  contained  in  the  Mutiny  Acts.  Of 
course  the  necessity  of  coming  to  Parliament  for  money  to 
pay  the  troops  and  provide  equipment  and  provisions  com- 
pelled some  sort  of  account  of  its  management  to  be  given. 

The  Secretary  at  War 

But  the  Secretary  at  War,  an  important  official  on  whom 
this  duty  fell,  was  not  part  of  the  Ministry  of  the  day ;  and 
if,  for  reasons  of  obvious  convenience,  he  occupied  a  seat  in 
the  House  of  Commons,  he  did  not  admit  that  he  was  respon- 
sible to  that  House.  The  sums  voted  by  Parliament  for  the 
army  were  handed  over  to  the  Paymaster  of  the  Forces,  who 


178  THE    FIGHTING    SERVICES 

was  not  by  any  means  necessarily  a  member  of  Parliament 
at  all,  and  who  was  responsible  for  his  acts  to  the  King  alone. 

Army  Estimates 

The  first  definite  step  taken  to  bring  the  regular  army 
under  the  control  of  Parliament  was  the  enactment,  in  the 
year  1783,  as  part  of  Burke's  schemes  of  reform,  of  an  Act 
requiring  the  Secretary  at  War  to  prepare  and  lay  annual 
estimates  of  military  expenditure  before  Parliament,  and  to 
obtain  and  examine  the  accounts  of  the  Paymaster,  whose 
defalcations  in  the  past  had  been  notorious. 

Commander-in-Chief  and  Secretary  of  State 

But  a  far  greater  step  was  taken  in  the  year  1793,  when, 
as  a  consequence  of  the  great  French  War,  the  military  con- 
trol of  the  army  was  placed  under  a  professional  Commander- 
in-Chief,  while  its  administrative  control  was  placed  under  a 
newly  created  Secretary  of  State  for  War.  Thus  began 
that  system  of  "  dual  control  "  of  the  army,  by  the  "  Horse 
Guards  "  or  headquarters  of  the  Commander-in-Chief,  and 
the  "  War  Office  "  or  bureau  of  the  Secretary  of  State,  which 
was  the  parent  of  so  much  friction  and  confusion.  More- 
over, the  old  office,  now  become  meaningless  and  dangerous, 
of  Secretary  at  War,  was  not  abolished. 

The  definite  establishment  of  the  principle  that  in  army 
administration,  as  in  other  departments  of  State,  Parlia- 
ment is  supreme,  did  not  come  until  after  the  Crimean  War, 
when,  by  the  separation  of  the  War  and  Colonial  Offices 
(p.  70),  and  the  abolition  of  the  Secretaryship  at  War,  the 
Secretary  of  State  for  War,  always  a  member  of  the  Min- 
istry, and,  in  normal  times,  a  member  of  the  Cabinet,  ac- 
quired complete  control  of  the  army,  and,  of  course,  there- 
with complete  responsibility  to  Parliament,  tempered  only 
by  the  surviving  powers  of  the  Commender-in-Chief. 


THE    ARMY    COUNCIL  179 

Reforms  of  1870 

The  latter  office  was,  moreover,  definitely  subordinated 
to  that  of  the  Secretary  of  State  by  Mr.  Cardwell's  reforms 
of  1870,  which  created,  in  effect,  three  sub-departments  of 
the  War  Office,  the  first,  purely  military,  under  the  Com- 
mander-in-Chief, the  second  dealing  with  equipment  and  com- 
missariat, taking  over  the  duties  of  the  old  Ordnance  Board, 
and  the  third  dealing  with  finance.  The  latter  two  sub- 
departments  were  presided  over  respectively  by  a  Surveyor- 
General  and  a  Financial  Secretary,  both  of  whom  might  be 
members  of  the  House  of  Commons,  but  who  were  distinctly 
subordinates  of  the  Secretary  of  State. 

Reforms  of  1888,  1895,  and  1904 

Further  reforms,  of  a  partial  nature,  were  introduced  by 
Mr.  Stanhope  in  1888,  and  Lord  Hartington  in  1895 ;  but 
the  most  complete  change  was  made  in  1904,  when,  as  the 
result  of  the  recommendations  of  Lord  Esher's  Commission, 
the  office  of  Commander-in-Chief  was  definitely  abolished, 
and  the  government  of  the  army  entrusted  to  an  Army  Coun- 
cil, created  from  time  to  time  by  Letters  Patent,  and  consist- 
ing of  the  Secretary  of  State,  the  Parliamentary  Under-Sec- 
retary for  War,  the  Financial  Secretary  to  the  War  Office, 
with  four  professional  members,  viz.  the  Chief  of  the  General 
Staff,  the  Adjutant-General,  the  Quartermaster-General, 
and  the  Master-General  of  Ordnance. 

The  Army  Councii. 

This  body,  whose  duties  were  regulated  by  Order  in  Coun- 
cil, and  which  consists,  as  we  have  just  seen,  of  three  Minis- 
ters and  four  professional  officials  of  high  rank,  has  the 
virtual  control  of  the  daily  administration  of  the  army,  is- 
sues foraial  Orders  relating  to  its  government,  and,  under 
the  Defence  of  the  Realm  Acts,  about  many  other  matters 
relating  to  public  safety,  regulates  promotions,  carries  out 
the  decisions  of  the  Imperial  Cabinet  on  the  subject  of  the 


180  THE    FIGHTING    SERVICES 

direction  of  campaigns,  and  the  movement  of  troops,  and, 
through  the  Committee  of  Imperial  Defence  (p.  188),  co- 
operates with  the  Royal  Navy.  The  fact  that  the  Army 
Council  contains  a  majority  of  non-Parliamentary  members, 
may  appear  to  be  inconsistent  with  that  Parliamentary  con- 
trol of  the  army  which  is  essential  to  the  principles  of  the 
British  Constitution ;  but,  apart  from  the  fact  that  the  Sec- 
retary of  State  is  President  of  the  Council,  it  is  clear,  from 
the  terms  of  the  Letters  Patent  constituting  the  Council, 
and  the  Order  in  Council  regulating  its  duties,  that  the  Coun- 
cil is  only  to  act  as  a  highly  responsible  and  qualified  deputy 
of  the  Secretary  of  State,  who  is  responsible  to  King  and 
Parliament  for  the  business  of  the  War  Office.  And,  though 
the  Secretary  of  State  may  not  be  actually  a  member  of  the 
Imperial  Cabinet,  he  is  so  closely  in  touch  with  it  as  to  make 
him  morally  certain  of  its  support,  so  long  as  he  retains  of- 
fice. Finally,  though  the  reforms  of  1904  contemplated  the 
appointment  of  an  Inspector-General  of  the  Forces,  whose 
office  might  conceivably  have  retained  a  good  deal  of  the  old 
independent  authority  of  the  Commander-in-Chief,  in  fact, 
after  a  single  experiment,  this  new  office  has  fallen  into  abey- 
ance. Judged  by  results,  the  first  ten  years  of  the  working 
of  the  new  scheme  may  be  said  to  have  been  highly  satisfac- 
tory; for,  by  the  admission  of  all  parties,  there  has  rarely 
been  launched  by  any  army  organization  a  more  efficient 
force  than  the  Expeditionary  Army  which,  called  in  August, 
1914,  to  withstand  the  shock  of  the  most  elaborately  pre- 
pared and  overwhelmingly  numerous  army  of  invasion  ever 
seen  in  the  history  of  modern  Europe,  perhaps  of  the  world, 
gallantly  performed  its  heroic  task. 

The  subject  of  army  recruiting  —  i.e.  the  terms  of  and 
liability  to  service  in  the  British  army,  is  now,  naturally,  in 
a  fluid  state ;  and  we  can  give  only  the  barest  outlines. 
Briefly  speaking,  however,  there  are  now  four  chief  sections 
of  the  army,  each  of  which  stands,  legally,  on  a  distinct 
footing. 


THE    REGULAR    ARMY  181 


The  Regular  Army 


(1)  The  first  of  these  is  the  "  regular"  or  professional 
section  —  infantry,  cavalry,  and  horse  and  foot  artillery, 
and  engineers.  These  are  recruited  under  the  terms  of  the 
Army  Act,  on  a  voluntary  system,  which  authorizes  the 
Crown  to  accept  their  services  for  a  period  not  exceeding 
twelve  years.  In  practice,  the  period  for  which  the  regular 
private  soldier  enlists  is  now  seven  years  with  the  colours 
and  five  in  the  "  reserve  "  (p.  183)  ;  while  it  would  seem  that 
acceptance  of  a  commission  by  an  officer  binds  him  to  serve 
during  the  Crown's  pleasure,  though,  in  time  of  peace,  the 
officer  can,  in  practice,  resign  his  commission  at  any  time. 
Moreover,  the  length  and  terms  of  service  may  be  extended 
or  varied  by  the  Secretary  of  State,  within  the  limits  pre- 
scribed by  the  Army  Act ;  and  there  are  provisions  for  sus- 
pending the  right  to  a  discharge  at  the  expiry  of  a  period  of 
service,  if  the  Empire  is  then  at  war,  and  for  prolonging 
it  voluntarily,  if  the  soldier  so  desires.  Owing  to  the  great 
changes  wrought  by  the  European  War,  it  is  impossible  now 
to  give  any  idea  of  the  probable  future  numbers  of  the  regu- 
lar army ;  but,  at  the  outbreak  of  the  war,  it  numbered  about 
120,000  men.  The  members  of  the  regular  army  are  liable 
to  be  sent  anywhere,  at  any  time,  on  service. 

The  Royal  Marines 

(2)  The  Royal  Marines  are  a  body  of  regular  troops, 
infantry  and  artillery,  of  great  value,  which  occupies  a 
curious  legal  position.  Its  members  are  liable  to  serve  both 
on  land  and  sea.  They  are  raised  under  the  provisions  of 
the  Mutiny  Acts,  which  make  special  reference  to  them ;  and 
when  they  are  serving  on  land,  or  on  any  merchant  ship  or 
transport,  they  are,  with  certain  reservations,  subject  to  the 
provisions  of  the  Army  Act.  But  when  they  are  serving  on 
board  a  ship  of  war,  they  are  subject  to  the  provisions  of 
the  Naval  Discipline  Acts  (pp.  170,  171)  ;  unless  they  are 


182  THE    FIGHTING    SERVICES 

"  borne  on  the  books  "  for  service  on  shore,  when  only  parts 
of  those  provisions  apply  to  them. 

New  Armies 

(3)  The  "new"  armies  raised  at  the  outbreak  of  the 
war,  and  now  forming  by  far  the  largest  part  of  the  armed 
forces  of  the  Crown,  differ  in  more  than  one  respect  from 
the  "  regular  "  or  "  standing  "  army.  In  the  first  place, 
they  are  enlisted,  at  any  rate  so  far  as  the  non-commissioned 
ranks  are  concerned,  for  three  years  or  the  duration  of  the 
war  only ;  and  over  five  millions  of  men  were  voluntarily  so 
enlisted.  In  the  second  place,  since  the  passing  of  the  Mili- 
tary Service  Acts  of  the  year  1916,  every  male  British  sub- 
ject ordinarily  resident  in  Great  Britain,  between  the  ages 
of  eighteen  and  forty-one,  is  liable,  subject  to  certain  excep- 
tions, for  general  service  in  them,  during  the  war,  and  is, 
indeed,  deemed,  on  attaining,  or,  if  he  had  attained  at  a 
certain  date,  the  age  of  eighteen  and  had  not  attained  forty- 
one,  to  have  been  enlisted  therein  and  transferred  to  the  "  re- 
serve "  (p.  183).  From  this  reserve  he  can  be  called  up  as 
required ;  and,  as  a  matter  of  fact,  such  persons  are  system- 
atically called  up  for  active  service,  subject  to  the  require- 
ments of  essential  industries  and  various  exemptions  on  ac- 
count of  illness,  hardship,  or  other  ground  of  postponement. 
These  armies  likewise  comprise  all  branches  of  the  land 
service. 

The  Territorials 

(4)  The  Territorial  and  Reserve  Forces,  which  have  sub- 
stantially taken  the  places  both  of  the  old  militia  and  the 
"  Volunteers  "  ^  of  the  nineteenth  century.  These  are  not, 
in  ordinary  times,  strictly  a  part  of  the  standing  army,  but 
rather  materials  from  which  a  standing  army  may  be  speed- 
ily raised. 

1  The  term,  though  familiar,  is  misleading;  for  the  members  of  the  regular 
army  have  long  been  volunteers  in  the  strict  sense.  But  the  colloquial  use  of  the 
term  signified  the  amateur  soldiers  of  the  latter  half  of  the  nineteenth  century. 


THE    RESERVES  183 

The  Army  Reserve 

The  "  reserves  "  are  in  substance  ex-soldiers  who,  on  the 
expiry  of  their  period  of  service  with  the  colours  (p.  181), 
are  transferred  to  the  reserve  under  the  provisions  of  the 
Army  Act,  and  others,  likewise  usually  men  of  some  military 
experience,  who  have  directly  enlisted  into  the  reserve  under 
the  provisions  of  the  Reserve  Forces  Act  of  1882.  These 
form  Class  I  of  the  Army  Reserve,  are  the  first  liable  to  be 
called  up  for  service,  and  may  be  called  upon  to  serve  any- 
where. Class  II  of  the  Army  Reserve  comprises  Greenwich 
and  Chelsea  out-pensioners,  and  other  time-expired  men; 
and  they  are  not  liable  to  foreign  service.  At  the  outbreak 
of  the  war,  these  two  classes  together  numbered  about  146,- 
000  effectives.  If  Parliament  is  not  sitting  when  the  Army 
Reserve  is  "  called  out,"  it  must  be  summoned  by  the  Crown 
to  meet  within  ten  days.  In  time  of  peace,  the  members  of 
the  Army  Reserve  are  subject  to  short  periods  of  annual 
training. 

The  Militia  Reserve 

The  Militia  Reserve  has  now  become  practically  obsolete; 
because  most  of  its  members  have  been  transferred  to  the 
"  Special  Reserve  "  created  under  the  provisions  of  the  re- 
cent Territorial  and  Reserve  Forces  Act  of  1907  (p.  184). 
While  it  existed,  it  comprised  such  trained  militia-men  (p.  7) 
as  voluntarily  enlisted  into  it  —  a  step  which  entailed  the 
liability  to  foreign  service  if  called  to  the  colours.  Whilst 
in  reserve,  the  members  of  the  Militia  Reserv^e  were  subject 
to  the  same  annual  training  as  the  members  of  the  Army 
Reserve. 

The  Special  Reserve 

The  Special  Reserve,  as  has  been  said,  is  a  creation  of  the 
new  scheme  for  the  improvement  of  the  civilian  forces  con- 
tained in  the  Territorial  and  Reserve  Forces  Act,  1907. 
This  scheme  had  for  its  object  the  conversion  of  the  two 
civilian  forces  of  "  Militia  "  and  "  Volunteers  "  into  a  new 


184  THE    FIGHTING    SERVICES 

and  more  efficient  body  of  "  Territorials,"  for  purposes  of 
defence.  But  its  framers  had  to  face  the  fact  that  they 
were  deahng  with  two  legally  different  bodies ;  for  the  Mili- 
tia was,  in  theory  at  least,  a  body  recruited  by  compulsory 
liability  to  serve  under  the  Militia  Ballot  Act  (p.  6),  while 
the  Volunteer  Corps  were  on  a  purely  voluntary  basis.  More- 
over, there  were  differences  with  regard  to  training,  pay, 
equipment,  and  allowances,  between  the  two  bodies.  The 
Act,  accordingly,  authorizes  the  transfer,  by  Order  in  Coun- 
cil, of  militia  battalions  to  a  new  Special  Reserve;  and,  un- 
der this  power,  a  large  number  of  the  old  militia,  including 
especially  the  "  Militia  Reserve,"  have  been  so  transferred, 
to  the  number,  at  the  outbreak  of  the  great  war,  of  about 
63,000.  The  Special  Reserve  is  placed  very  much  on  the 
same  footing  as  the  Army  Reserve ;  except,  of  course,  that 
its  members  cannot,  unless  they  come  under  the  Military 
Service  Acts  before  described  (p.  182),  be  compelled  to 
serve  abroad,  and  that  they  may,  on  the  other  hand,  be  liable 
to  special  courses  of  training. 

But  the  chief  object  of  the  scheme  of  1907  was,  of  course, 
the  creation  and  maintenance  of  a  body  of  trained  citizen 
soldiers  for  defence  purposes,  on  a  more  solid  and  uniform 
basis  than  that  of  the  old  "  Volunteers."  The  nucleus  of 
this  force  was  formed  by  the  transfer  to  it  of  existing  "  Yeo- 
manry "  ^  and  "  Volunteer  "  units,  on  their  existing  condi- 
tions of  service;  but  the  scheme  contemplated  the  addition, 
by  voluntary  enlistment  for  a  period  not  exceeding  four 
years,  of  men  willing  to  devote  a  substantial  part,  though 
not  the  whole,  of  their  time  to  annual  periods  of  concentrated 
training,  and  modified  continuous  training,  in  the  duties  of 
a  soldier. 

Territorial  Associations 

The  special  novelty  of  the  scheme  was,  however,  the  cre- 
ation of  representative  county  associations,  under  the  presi- 

1  The  yeomanry  were  volunteer  cavalry,  liable  to  be  called  out  as  militia,  but 
in  other  respects  on  much  the  same  legal  footing  as  the  "  Volunteers." 


THE    TERRITORIALS  —  AIR    FORCE        185 

dency  of  the  Lord  Lieutenants  (pp.  6,  249),  which  should  be 
responsible  to  a  large  extent  for  the  raising,  equipment,  and 
maintenance  of  the  Territorial  corps ;  though  when  the  Ter- 
ritorials are  embodied,  or  "  called  out,"  they  then  become 
subject  to  military  law,  and  to  most  intents  part  of  the  reg- 
ular army,  except  that,  apart  from  the  provisions  of  the 
Military  Service  Acts  (p.  182),  they  cannot  be  sent  abroad 
without  their  own  consent.  The  embodiment  is  effected  by 
the  Army  Council,  but  may  only  take  place  after  some  part 
of  the  Army  Reserve  (p.  183)  has  been  called  out;  though 
it  must  take  place  when  the  whole  of  Class  I  of  the  Army 
Reserve  has  been  called  out,  unless  within  one  month  Par- 
liament addresses  the  Crown  against  the  step.  The  response 
to  the  scheme  of  1907  was  satisfactory.  The  effective  num- 
bers of  the  Territorials  at  the  outbreak  of  the  war  were  just 
over  a  quarter  of  a  million ;  and  they  have  given  a  first-rate 
account  of  themselves.  Until  they  are  "  called  out,"  how- 
ever, the  Territorials  are  not  within  the  provisions  of  the 
Bill  of  Rights  concerning  the  maintenance  of  a  "  standing 
army." 

The  Air  Force 

As  the  sheets  of  this  book  were  passing  through  the  press, 
there  was  created,  by  the  Air  Force  (Constitution)  Act  of 
1917,  a  distinct  new  administrative  and  combatant  branch 
of  the  armed  forces  of  the  Crown  in  the  United  Kingdom, 
viz.  the  Air  Force,  under  the  control  of  a  new  Air  Council. 
This  latter  body,  which  Is  presided  over  by  a  new  Secretary 
of  State,  and  is  to  consist  of  him  and  such  other  members 
as  shall  be  appointed  by  Order  in  Council,  is  to  administer 
the  recently  created  Air  Force,  which  has  already  performed 
such  brilliant  services  in  the  war,  and  whose  role  in  the  fu- 
ture is,  probably,  destined  to  be  even  more  important.  For 
this  purpose  an  Order  in  Council  may,  and,  doubtless,  will,^ 
transfer  to  the  Air  Council  and  the  Secretary  of  State,  in 

*  An  Order  in  Council  dated  December  2,  1917,  has  abeady  appointed  the 

members  of  the  Air  Council,  and  allotted  their  duties. 


186  THE    FIGHTING    SERVICES 

respect  of  the  Air  Force,  any  statutory  powers  now  exer- 
cised by  the  Army  Council  and  the  Secretary  of  State  for 
War,  with  regard  to  the  army;  and  provision  is  made  for 
incorporating  into  the  Naval  Discipline  Act  and  the  Army 
Act  (pp.  170,  175)  the  necessary  resultant  changes.  Thus 
the  members  of  the  new  Air  Force,  like  their  comrades  on 
sea  and  land,  will  be  subject  to  the  provisions,  and  enjoy  the 
protection  of,  "military  law"  (p.  175).  The  numbers  of 
the  Air  Force  are  to  be  fixed  from  time  to  time  by  Parlia- 
ment (presumably  in  the  annual  "  Mutiny  Acts,"  p.  176)  ; 
but,  subject  to  this  constitutional  provision,  any  man  in  the 
Army  Reserve,  which  includes,  it  will  be  remembered,  all 
persons  liable  to  serve  under  the  Military  Service  Acts  who 
have  not  actually  been  called  up,  may  be  transferred  to  it. 
Moreover,  any  member  of  the  two  Air  units  existing  at  the 
date  of  the  passing  of  the  Act,  viz.  the  Royal  Naval  Air 
Service  and  the  Royal  Flying  Corps,  may,  with  the  consent 
of  the  Admiralty  or  the  Army  Council  respectively,  be  trans- 
ferred to  the  new  Air  Service.  But  it  is  noteworthy  that 
any  member  of  such  units  who  joined  before  a  date  to  be 
fixed,  may,  within  three  months  after  receiving  notice  of  his 
transfer,  refuse  to  be  transfeiTed,  and  that  no  such  person 
can  be  compelled  by  such  transfer  to  serve  with  the  Air 
Force  for  longer  than  he  was  liable  previously  to  serve. 

Colonial  and  Indian  Forces 

It  is  from  no  inclination  to  undervalue  the  splendid  serv- 
ices to  the  Empire  rendered  by  the  forces  of  the  Colonies 
and  India,  but  simply  owing  to  the  limits  of  space,  that  the 
account  of  their  naval  and  military  systems  must  be  brief. 
For  nothing  could  illustrate  more  clearly  the  principles  of 
liberty  and  self-government  on  which  that  Empire  is  based. 
Even  when  it  became  clear  that  the  Empire  was  faced  with 
a  war  of  unparalleled  magnitude,  in  which  its  very  existence 
was  at  stake,  there  was  no  attempt  to  override  those  prin- 
ciples. Happily,  though  the  need  for  it  seemed  to  be  re- 
mote, some  provision  had  already  been  made  to  meet  a  crisis 


COLONIAL    AND    INDIAN    FORCES  187 

such  as  that  which  arose  in  August,  1914.  All  the  self-gov- 
erning Dominions  had  voluntarily  testified  their  wishes  to 
contribute,  in  one  way  or  another,  to  the  provision  of  an 
Imperial  Navy ;  some  by  building  and  equipping  local  squad- 
rons, which,  while  primarily  concerned  with  defending  their 
own  shores,  should,  at  the  outbreak  of  war,  pass  at  once 
under  the  central  control  of  the  British  Admiralty,  others 
by  voting  subsidies  towards  the  up-keep  and  increase  of  the 
British  Navy,  others  again  by  presenting  complete  ships  to 
the  Admiralty,  to  be  used  as  it  should  deem  best.  The  ex- 
ploits of  some  of  these  newest  recruits  to  the  navy  of  Drake 
and  Hawkins  will  not  soon  be  forgotten ;  they  proved  them- 
selves worthy  of  traditions  the  most  splendid  in  the  history 
of  naval  warfare.  The  same  principle  of  liberty  prevailed 
in  regard  to  the  land  forces  of  the  Outer  Empire.  Most  of 
the  self-governing  Dominions,  if  not  quite  all,  had  adopted 
the  principle  of  compulsory  defence  service.  On  the  out- 
break of  the  war,  all  sent  large  contingents  to  the  Imperial 
forces ;  and  some  ultimately  adopted  schemes  of  compulsory 
foreign  service,  whilst  others  continued  to  rely  on  voluntary 
foreign  service.  The  men  they  sent  to  the  war  proved  to  be 
some  of  the  finest  soldiers  in  the  world ;  the  Dominion  graves 
in  Gallipoli  and  France  will  remain  a  standing  testimony  to 
the  heroic  sacrifices  made  in  one  of  the  most  desperate  strug- 
gles in  military  history.  It  was  a  similar  story  in  the  Crown 
colonies.  Some  of  them  adopted  conscription ;  others  did 
not  —  in  one  case  for  the  very  excellent  reason  that  every 
white  man  there  volunteered.  Every  man  from  the  Indian 
army  (p.  87)  who  could  be  spared  from  his  primary  duty 
of  defending  the  Indian  frontier,  came  willingly  for  service 
in  Europe,  Asia,  or  Africa.  The  Native  Chiefs  of  India 
poured  out  their  treasure  in  the  cause  of  the  Empire  and 
sent  their  Imperial  Service  troops  (p.  88)  to  the  front; 
while  the  loyal  coloured  races  of  Africa  volunteered  for  la- 
bour behind  the  lines,  which  was  only  less  valuable  than 
actual  fighting  in  the  trenches.  Never  has  there  been  a  more 
spontaneous  and  enthusiastic  rally  of  nations  to  a  common 


188  THE    FIGHTING    SERVICES 

flag.  Never  has  a  jealous  rival's  fond  dream  of  a  dissolving 
Empire  been  more  rudely  dispelled.  It  is  hardly  too  much 
to  say,  that  the  challenge  of  August,  1914,  was  answered 
by  a  trumpet  call  which  heralded  the  re-birth  of  the  British 
Empire. 

The  Committee  of  Imperial  Defence 

It  is  satisfactory  to  be  able  to  say,  that  the  possibilities 
of  a  really  Imperial  scheme  of  naval  and  military  organiza- 
tion have  not,  despite  the  proverbial  slowness  of  the  British 
mind  in  such  directions,  been  entirely  neglected-  From  the 
year  1895,  there  existed  a  committee  of  the  Cabinet,  known 
as  the  "  Defence  Committee."  It  was,  at  first,  purely  in- 
formal, kept  no  minutes,  and  held  no  regular  sittings.  In 
the  year  1902,  it  was  remodelled,  and  its  composition  and 
purposes  frankly  explained  to  the  House  of  Commons.  It 
consisted  of  the  Prime  Minister,  the  Secretaries  of  State 
for  War  and  India,  the  First  Lord  of  the  Admiralty,  the 
First  Sea  Lord,  and  the  Directors  of  Naval  and  Military 
Intelligence.  In  1904,  it  was  furnished  with  a  secretarial 
staff,  and  began  to  keep  formal  minutes.  Shortly  after  the 
outbreak  of  the  present  war,  the  Committee  of  Imperial  De- 
fence was  strengthened,  and  became  a  body  having  almost 
executive  power  to  enforce  its  own  decisions ;  but  it  remained, 
in  theory,  a  committee  of  the  Cabinet  (which  was  then  a 
large  body)  supplemented  by  expert  assistance.  Its  rela- 
tions to  the  Cabinet,  however,  were  obscure  and  not  very 
satisfactory,  until  the  drastic  rearrangements  which  took 
place  in  December,  1916  (p.  106),  once  more  left  it  the 
great  expert  War  Council  of  the  Empire. 

"  Martial  Law  '* 

We  have  now  left  for  discussion  only  the  one  important 
constitutional  point  before  referred  to  (p.  175),  viz.  the 
legal  position  of  the  military  authorities  in  connection  with 
what  is  commonly  known  as  "  martial  law."  Perhaps  one 
of  the  most  important  facts  to  remember  on  this  question 


"MARTIAL    LAW"  189 

is,  that  it  is  not,  necessarily,  a  military  question  at  all ; 
though  the  circumstances  in  which  it  arises  render  it  inev- 
itably associated,  in  the  minds  of  lawyers  and  the  public, 
with  the  military  forces  of  the  Crown.  The  question  could, 
however,  really  be  in  substance  the  same,  if  the  Crown,  in 
proclaiming  "  martial  law,"  entrusted  the  execution  of  it  to 
the  police,  or  a  body  of  civilian  volunteers.  It  is  only  be- 
cause the  superior  efficiency  of  the  soldier  for  the  purpose 
in  fact  makes  the  choice  of  the  Crown  fall  invariably  upon 
him,  and  because  the  striking  contrast  between  the  military 
and  the  civilian  character  of  the  soldier  is  thereby  brought 
out,  that  the  discussion  inevitably  assumes  the  shape  of  a 
contest  between  the  claims  of  military  and  civil  law. 

Military  Law 

We  have  first,  then,  to  remember  that,  by  virtue  of  the 
provisions  of  the  Naval  Discipline  Acts  and  the  Army  Act, 
before  explained  (pp.  170,  175),  the  regular  members  of 
the  Royal  Navy,  Army,  and  Air  Force  at  all  times,  and  the 
members  of  the  Territorial  and  Reserve  Forces  when  embodied 
or  "  called  out,"  are  under  a  peculiar  and  elaborate  code  of 
law,  not  applicable  to  civilians,  but  as  much  true  law,  being 
expressly  authorized  by  Act  of  Parliament,  as  any  other 
part  of  British  law.  Whether  they  are  also  under  any  fur- 
ther "  prerogative  "  authority  of  the  Crown,  is  a  question 
which  has  been  touched  on  before  (p.  176),  but  is  not  ma- 
terial to  our  present  purpose;  for  such  authority  clearly 
cannot  give  the  soldiers  rights  against  civilians.  But  really 
it  is  a  great  mistake  to  assume  that  these  elaborate  codes  of 
military  law,  the  Naval  Discipline  Acts  and  the  Army  Act, 
confer  any  substantial  rights  on  the  sailor  or  soldier.  They 
subject  him  to  a  large  number  of  liabilities,  and  deprive  him 
of  a  very  considerable  number  of  rights  which  belong  to 
the  civilian  citizen.  Thus,  they  deprive  him,  in  a  large  num- 
ber of  cases,  of  the  elementary  right  of  trial  by  jury  which 
is  supposed  to  belong  to  practically  every  subject  of  the 
Empire,  at  any  rate  when  charged  with  a  serious  offence. 


190  THE    FIGHTING    SERVICES 

Further  than  that,  he  is  deprived,  in  respect  of  all  matters 
arising  out  of  military  discipline,  of  a  good  many  of  the  or- 
dinary remedies  open  to  the  civilian  for  the  vindication  of 
his  rights,  such  as  actions  for  defamation,  assault,  false  im- 
prisonment, and  the  like.  On  the  other  hand  —  and  this  is 
of  the  essence  of  the  question  we  are  discussing  —  the  sol- 
dier is  by  no  means  freed  from  liability  to  be  prosecuted,  or 
even  (except  in  trifling  cases)  sued  by  the  private  citizen, 
in  the  ordinary  courts,  for  any  offences  against  the  ordinary 
law  which  he  may  have  committed,  even  in  the  course  of  his 
military  duty.  This  is  part  of  the  great  Rule  of  Law  be- 
fore explained  (p.  34)  ;  and  it  holds,  even  in  time  of  war. 

Military  Action 

In  the  second  place,  it  must  again  be  remembered,  that  two 
of  the  primary  duties  of  the  Crown  are  the  conduct  of  war  and 
the  maintenance  of  internal  order.  In  so  far  as  warlike  op- 
erations are  conducted  in  alien  territory,  they  are  hardly 
likely  to  affect  British  subjects  directly;  and  the  interesting 
question  of  how  far  damage  done  to  the  property  of  a  Brit- 
ish subject  in  hostile  territory  occupied  by  British  troops 
could  give  the  owner  a  legal  claim  against  the  military  au- 
thorities, seems  not  to  have  been  discussed.  Needless  to  say, 
the  subjects  of  the  hostile  Power,  and  even  neutral  or  allied 
subjects  resident  in  the  hostile  territory,  would  have  no  legal 
redress  in  British  courts.  In  so  far  as  the  conduct  of  war 
involves  interference  with  private  rights  in  British  territory, 
the  Crown  has,  by  long-established  rules  of  the  common  law, 
certain  powers  which  it  may  justly  use  in  defence  of  the 
realm ;  and  these  powers  have  lately  been  widely  extended 
by  the  various  Defence  of  the  Realm  Acts,  and  the  Orders  of 
the  Army  Council  and  other  bodies  thereunder.  '  But,  in  so 
far  as  the  action  of  the  military  authorities  exceeds  these 
powers,  the  persons  responsible  for  that  action  can  be  made 
legally  liable  in  the  ordinary  courts,  as  has  been  shown  by 
many  recent  cases.  Only,  it  must  be  remembered,  the  pri- 
vate   citizen   cannot    make   a    superior   officer    (military    or 


"MARTIAL    LAW"  191 

civil)  liable  for  the  illegal  act  of  his  subordinate,  unless  it 
can  be  shown  that  the  superior  actually  authorized  the  illegal 
act ;  because  the  subordinate  is  not  the  servant  of  the  su- 
perior, but  of  the  Crown,  which,  of  course,  cannot  be  made 
directly  liable.  It  must  be  carefully  observed,  moreover, 
that  the  remedy  of  the  citizen  is  limited  to  cases  of  illegal 
acts,  and  does  not  extend  to  cases  of  mere  hardship.  Thus, 
if  a  military  officer  orders  stores  for  his  troops  in  the  King's 
name,  and  in  the  proper  course  of  his  duty,  he  cannot  be 
personally  sued  for  them,  unless  he  undertook  to  be  person- 
ally liable;  because  he  avowedly  acted  as  the  King's  agent. 

Maintenance  of  Order 

But  it  is  when  the  Crown  acts  in  its  second  great  capacity, 
as  maintainer  of  internal  order,  that  the  most  serious  ques- 
tions arise.  For  it  is  the  undoubted  right  and  duty  of  the 
Crown  to  take  any  steps  which  may  be  necessary  to  put 
down  disorder;  and  it  is,  equally  clearly,  the  undoubted  duty 
of  every  male  subject  of  active  years  to  assist  the  King  and 
his  officers,  civil  or  military,  in  repressing  disorders,  in  any 
manner  that  may  be  reasonably  necessary,  even  to  the  shed- 
ding of  blood.  If  any  authority  is  needed  for  this  proposi- 
tion, it  may  be  found  in  the  clause  of  the  Sheriffs  Act  of 
1 887,  which  enacts  that  "  every  person  in  a  county  .  .  . 
shall  be  ready  and  apparelled  at  the  command  of  the  sheriff 
and  at  the  cry  of  the  country  to  arrest  a  felon  " ;  while  the 
sheriff  is  empowered  by  the  same  statute  to  "  take  the  power 
of  the  county  and  arrest  and  commit  to  prison  any  one  re- 
sisting the  execution  of  a  writ." 

"  Calling  out  the  Military  " 

When,  therefore,  the  King  or  his  official  "  calls  out  the 
military  "  to  repress  disorder,  it  is  not  in  the  least  because 
he  is  not  entitled  to  call  on  other  persons,  but  merely  be- 
cause it  is  far  better  to  make  use  of  a  disciplined  and  expert 
force  when  serious  measures  are  necessary,  than  to  rely  upon 
untrained  civilians. 


192  THE    FIGHTING    SERVICES 

"  Reading    of    the    Riot    Act  "    and    Proclamation    of 
"  Martial  Law  " 

And,  similarly,  though  it  is  aflvisable  to  take  the  pre- 
liminary step  of  "  reading  the  Riot  Act  "  (as  it  is  called),  i.e. 
formally  reciting  the  preamble  and  penalties  of  the  Riot 
Act,  or,  in  graver  cases,  of  "  proclaiming  martial  law," 
neither  of  these  steps  is  in  the  least  essential,  nor,  »except  on 
the  question  of  penalties,  does  the  taking  or  omission  of  them 
in  the  least  alter  the  legal  position.  They  are,  in  fact, 
merely  in  the  nature  of  warnings  by  the  Crown  that  it  is 
about  to  perform  a  vital  duty  which  may  involve  the  use  of 
force,  and  that  all  persons  who  would  avoid  the  risk  neces- 
sarily entailed  by  the  use  of  force,  had  better  keep  away 
from  the  scene  of  disorder. 

Finally,  the  so-called  "  courts  martial  "  held  in  the  course 
of  the  proceedings  have  little  or  nothing  in  common  with  the 
formal  and  strictly  legal  naval  and  military  courts  martial 
held  under  the  Naval  Discipline  Acts  and  the  Army  Act, 
which  are  regular,  though  somewhat  exceptional,  courts  of 
justice.  And  the  so-called  "  sentences  "  of  the  so-called 
"  courts  martial  "  held  under  a  proclamation  of  "  martial 
law,"  are  not  judicial  sentences  at  all;  that  is  to  say,  they 
are  not  founded  on  any  precise  law,  but  are  merely  acts  of  a 
peculiarly  solemn  nature  done  in  the  course  of  repressing 
disorder.  The  moment  the  disorder  has  ceased,  their  con- 
tinuance becomes  strictly  illegal. 

It  is  obvious,  then,  that  if  any  question  arises  as  to  the 
legality  of  any  sentence  by  a  "  court  martial  "  of  this  kind, 
or  of  any  act  done  in  the  course  of  the  repression  of  the  dis- 
order, the  points  to  be  decided  are  simply  two,  which  really 
are  one,  viz.  (1)  Was  there  in  fact  a  state  of  disorder  which 
rendered  the  use  of  force  necessary .f*  (2)  Was  the  particu- 
lar act  reasonably  necessary  to  repress  it.''  And  these  are 
questions  which  are  submitted  to  a  jury,  in  the  ordinary 
way,  on  any  prosecution  of  any  person,  civilian  or  soldier, 
for  having  taken  part  in  such  acts,  or  in  any  action  for  as- 


"MARTIAL    LAW"  193 

sault,  wrongful  imprisonment,  damage  to  property,  or  defa- 
mation, brought  by  a  private  citizen  for  injury  suffered  by 
them,  or  which  are  decided  by  the  Court  on  any  application 
by  a  person  imprisoned  under  them  for  his  "  Habeas  Cor- 
pus "  (pp.  33-35).  If  these  questions  are  answered  in  the 
affirmative,  there  is  no  legal  redress,  however  innocent  the 
complainant.  He  has  merely  been  the  unfortunate  victim  of 
public  disaster,  and  can  only  appeal  for  compensation  on  the 
ground  of  hardship. 

Legal  Liability  if  Acts  Unnecessary 

But  if  it  should  appear  to  the  jury  or  the  Court  that  the 
acts  in  question  were  not  justified  by  the  facts,  the  com- 
plainant will  have  his  full  legal  remedy ;  and  the  wrong-doer 
will  be  subject  to  the  appropriate  penalty  for  his  offence, 
subject  to  the  Crown's  power  of  pardon,  or  to  an  Act  of  In- 
demnity passed  by  Parliament,  which  can,  of  course,  legalize 
anything,  even  after  the  event. 

Dual  Position  of  Soldieb 

But,  when  the  alleged  offender  is  a  soldier,  then  the  case 
may  be  a  peculiarly  hard  one;  for,  as  before  explained  (p. 
190),  the  soldier  is  subject  to  two  laws,  viz.  the  ordinary 
law  of  the  land,  which  says :  "  Any  one  committing  homicide 
without  legal  justification  is  liable  to  be  hanged,"  and  mili- 
tary law,  which  says :  "  Any  soldier  refusing  to  obey  the 
orders  of  his  superior  officer  is  liable  to  be  shot."  It  is 
obvious,  therefore,  that  if  a  soldier  fires  on  a  crowd  at  the 
order  of  his  superior  officer,  he  has  to  run  the  risk  of  being 
hanged ;  while,  if  he  refuses  to  fire,  he  runs  the  risk  of  being 
shot.  Happily,  British  law,  even  military  law,  imposes  no 
absolute  obligation  on  the  soldier  to  obey  the  orders  of  his 
immediately  superior  officer ;  ^  but  it  is  not  fair  to  expect  a 
soldier,  perhaps  not  a  very  well-educated  man,  to  decide  in 

'  Such  an  obligation  would,  as  has  been  pointed  out,  be  fatal  to  military 
discipline;  because  it  would  justify  the  soldier  in  shooting  his  colonel  at  the 
command  of  his  lieutenant. 


194  THE    FIGHTING    SERVICES 

a  hurry  whether  the  case  justifies  him  in  taking  the  extreme 
step  of  refusing  to  obey  orders.  In  the  event,  therefore,  of 
his  being  put  on  his  trial  for  murder  or  manslaughter,  he 
might  very  well  plead  his  officer's  orders,  or  the  so-called 
"  reading  of  the  Riot  Act  "  (p.  192),  or  a  proclamation  of 
"  martial  law,"  as  evidence  that  he  was  reasonable  in  what 
he  did,  and  therefore  justified.  And,  while  none  of  these 
facts,  nor  all  three  together,  would  necessarily  be  a  justifi- 
cation, there  can  be  little  doubt  that  each  or  all  of  them 
would  weigh  heavily  with  the  judge  in  summing  up  to  the 
jury,  and  with  the  jury  in  arriving  at  their  verdict;  while, 
in  the  event  of  that  verdict  being  unfavourable,  there  would 
remain  the  final  remedy  of  a  royal  pardon  or  an  Act  of  In- 
demnity (p.  193).  Only,  it  must  be  remembered,  that,  in 
the  event  of  a  private  citizen  bringing  an  action  for  damages 
for  assault,  false  imprisonment,  injury  to  property,  or  any 
similar  act  done  by  a  soldier  in  obedience  to  military  orders, 
the  royal  pardon  would  be  no  excuse;  for  the  Crown  cannot 
pardon  an  injury  inflicted  on  a  private  citizen  —  only  an 
Act  of  Indemnity  can  do  that,  though,  of  course,  the  Crown 
can,  if  it  likes,  pay  the  soldier's  damages  for  him. 

Position  of  "  Courts  Martial  " 

Finally,  it  must  be  remembered  that  the  case  of  the  offi- 
cer who  sits  on  a  so-called  "  court  martial,"  under  a  procla- 
mation of  "  martial  law,"  is  still  more  critical.  For,  as  we 
have  seen  (pp.  172,  173),  the  King  has  no  power  to  issue 
commissions  for  such  trials  in  any  circumstances,  being  for- 
bidden to  do  so  in  express  words  by  the  Petition  of  Right; 
unless,  possibly,  the  misquotation  of  the  words  of  that  stat- 
ute in  the  preamble  to  the  modern  Mutiny  Acts  (p.  174) 
may  be  held,  by  implication,  to  modify  that  provision  in 
time  of  war.  There  is,  in  fact,  a  fairly  recent  decision  of 
the  Judicial  Committee  of  the  Privy  Council  which  seems  to 
take  that  view;  and,  though  it  is  not  binding  on  the  courts 
of  the  United  Kingdom,  it  might  be  followed  in  those  courts, 
and  would,  probably,  be  held  binding  in  Colonial  and  Indian 


THE    SOLDIER    AND    THE    CITIZEN        195 

courts,  from  which  an  appeal  lies  to  the  Judicial  Committee 
(p.  269).  But,  apart  from  this  doubt,  an  officer  so  acting, 
and  imposing  a  sentence  of  death  upon  an  alleged  rebel, 
would,  legally  speaking,  be  guilty  of  murder  if  it  were  car- 
ried out,  and  could  only  take  refuge  behind  a  royal  pardon, 
which  would  really  be  an  exercise  of  the  dispensing  power 
declared  illegal  by  the  Bill  of  Rights  (p.  214),  or  an  Act  of 
Parliament,  such  as  the  Defence  of  the  Realm  Act,  or  an 
Act  of  Indemnity. 


CHAPTER  IX 

THE   TREASURY  AND   THE   SECRETARIES   OF 

STATE 

We  have  now  to  consider  how  the  general  work  of  the  Gov- 
ernment is  parcelled  out  among  the  different  "  departments  " 
of  State,  most  of  which  have  distinct  legal  powers,  though 
all  are  under  the  general  control  of  the  Cabinet. 

The  Treasury 

The  oldest  and  most  important  of  these  is  "  The  Treas- 
ury," the  superior  or  directing  part  of  a  still  older  institu- 
tion known  as  "  The  Exchequer,"  the  name  of  which  still 
survives,  and  is  now  appropriated  by  the  more  mechanical 
and  formal  part  of  the  ancient  machine. 

The  Exchequer 

The  ancient  Exchequer,  or  revenue  office  of  the  Norman 
kings,  comprised  virtually  all  the  great  officers  of  State  — 
the  Justitiar,  the  Lord  Chancellor,  the  Chief  Constable,  and 
the  Marshal ;  and  a  wonderfully  vivid  account  of  its  proceed- 
ings in  the  twelfth  century,  known  as  the  "  Dialogue  of  the 
Exchequer"  (p.  28),  supposed  to  have  been  written  by 
Bishop  Richard  of  London,  a  nephew  of  Bishop  Roger  of 
Salisbury,  the  reputed  founder  of  the  Exchequer,  still  sur- 
vives. Even  from  that  account,  however,  we  can  see  that 
the  Exchequer  was  already  passing  practically  into  the  hands 
of  a  special  official,  the  Treasurer,  afterwards  the  "  Lord 
High  Treasurer,"  whose  "  Pipe  Roll,"  or  record  of  the  work 
of  the  Exchequer,  was  the  primary  proof  of  its  numerous  pro- 
ceedings ;  though,  for  a  time,  they  were  all,  down  to  the  mi- 


THE    ANCIENT    EXCHEQUER  197 

nutest  detail,  also  recorded  in  the  Chancery  Roll  of  the  Lord 
Chancellor,  as  well  as  in  a  private  roll  kept  by  a  personal 
deputy  or  secretary  of  the  King. 

The  Lord  High  Treasueer 

As  time  went  on,  the  Treasurer  became  a  more  and  more 
important  person;  and  the  office,  in  Tudor  times,  was  often 
held  by  the  most  powerful  Minister  of  the  day ;  the  older 
office  of  Justitiar  having  disappeared,  and  those  of  the  Con- 
stable and  Marshal  having  become  mere  ceremonial  offices 
about  the  King's  Household.^  A  very  significant  clause  in 
the  important  Seals  Act  of  1535,  previously  alluded  to 
(p.  29),  excepts  the  Lord  Treasurer's  warrants  from  the 
strict  rules  which,  by  that  Act,  were  made  to  apply  to  other 
documents  leading  up  to  the  use  of  the  Great  Seal  of  Eng- 
land. So  important,  indeed,  did  the  office  become,  that  the 
Kings  showed  some  hesitation  in  filling  it ;  and,  in  the  year 
1612,  it  was  "  put  into  commission,"  i.e.  parcelled  out  among 
a  small  group  or  "  Board  "  of  persons,  known  as  "  Lords 
Commissioners  of  His  Majesty's  Treasury,"  all  of  nominally 
equal  powers,  though  the  real  primacy  lay  with  the  "  First 
Lord."  At  the  same  time,  the  purely  financial  work  of  the 
Exchequer  was  separated  from  the  general  policy  of  the  Gov- 
ernment, which  remained  under  the  control  of  the  Treasury 
Board ;  though  this  arrangement  did  not  become  permanent 
till  1643.  The  last  "  Lord  High  Treasurer  "  was  appointed 
in  1714,  by  the  dying  act  of  Queen  Anne,  who,  in  the  scene 
so  graphically  described  by  Thackeray,  in  the  work  before 
alluded  to  (p.  97  n.),  handed  the  "white  staff"  of  the 
Treasurer  to  the  Earl  of  Shrewsbury. 

The  Treasury  Board 

During  the  critical  period  when  the  old  powers  of  the 
Privy   Council   were   passing   to   the  modern   Cabinet    (pp. 

*  One  of  the  chief  reasons  for  their  loss  of  real  power  was  that  they  became 
hereditary  (p.  21);  while  the  office  of  Lord  Chancellor,  being  always,  until  the 
Reformation,  held  by  a  cleric,  did  not. 


198     TREASURY   AND    SECRETARIES   OF   STATE 

93,  94),  the  Treasury  Board  seems  to  have  acted  for  a 
while  as  the  seat  of  government ;  its  meetings  being  often  at- 
tended by  the  King  in  person.  But,  on  the  accession  of 
George  III,  who  gave  up  the  miscellaneous  official  revenue  of 
the  Crown  for  a  "  Civil  List,"  or  fixed  annual  income  for  life 
guaranteed  by  Parliament,  the  King  ceased  to  attend  meet- 
ings of  the  Board,  which  thus  passed  virtually  into  the  con- 
trol of  the  "  First  Lord,"  who  usually,  as  has  been  said 
(p.  107),  was  the  Prime  Minister  of  the  day,  and  who  chose 
his  own  colleagues,  though  the  latter  continued  to  be  ap- 
pointed by  Letters  Patent  under  the  Great  Seal.  In  the  sec- 
ond quarter  of  the  nineteenth  century,  the  Treasury  Board 
gradually  ceased  to  meet;  while,  by  an  Act  of  Parliament 
of  the  year  1849,  the  numerous  documents  required  by  law 
to  be  issued  by  "  The  Treasury,"  were  declared  to  be  for- 
mally correct  if  authenticated  by  the  signatures  of  two  of 
the  Lords  Commissioners,  usually  the  "  Junior  Lords,"  who, 
as  before  mentioned  (p.  Ill),  are  now  employed  in  the 
subordinate  work  of  the  Government. 

The  Chancellor  of  the  Exchequer 

Meanwhile,  the  special  care  of  the  finance  of  the  country 
had  devolved  upon  the  Chancellor  of  the  Exchequer,  a  very 
ancient  but  originally  humble  official,  who  had  gradually 
risen  in  importance,  and  who,  when  the  rich  sinecure  offices 
of  the  Exchequer,  such  as  those  of  the  Auditors,  the  "  Tell- 
ers," and  the  "  Clerk  of  the  Bills,"  were  abolished  after  the 
passing  of  the  first  Reform  Act,  became  the  second  person 
in  the  Treasury,  and,  as  has  been  said,  virtually  Finance 
Minister  of  State ;  though  the  precedence  of  the  "  First 
Lord,"  even  in  purely  Exchequer  business,  is  preserved  by 
the  fact  that  he  holds,  in  addition,  the  office  of  Treasurer  of 
the  Exchequer.  The  Chancellor  is  a  member  of  the  Treas- 
ury Board,  taking  precedence  of  the  "  Junior  Lords  "  by 
virtue  of  his  patent  as  Under-Treasurer ;  and,  being  invari- 
ably, and  necessarily,  a  member  of  the  House  of  Commons, 
he  usually  acts  as  Leader  of  that  House,  if  the  Prime  Min- 


THE    MODERN    TREASURY  199 

ister  is  in  the  Lords,  or  unable  to  act.  It  is,  however,  in 
his  capacity  of  a  Minister  of  the  Crown  that  he  makes 
the  important  "  Budget "  statement  previously  described 
(pp.  151,  152)  ;  though  his  influential  position  as  Leader,  or, 
at  least,  a  prominent  member,  of  the  House  of  Commons,  nat- 
urally adds  weight  to  his  financial  proposals.  Still,  like  all 
departments  of  State,  and,  perhaps,  even  more  so,  his  office 
remains  under  the  supreme  control  of  the  Prime  Minister  as 
First  Lord  of  the  Treasury;  unless,  indeed,  as  has  occasion- 
ally happened,  the  same  person  fills  both  offices.  Thus, 
though  all  details  of  financial  business  are  left  to  him,  he 
would  never  think  of  proposing  to  the  House  a  really  new 
principle  of  taxation  without  consulting  the  Prime  Minister, 
or,  indeed,  the  Cabinet  as  a  whole. 

Having  already  described  the  complicated  process  through 
which  the  Chancellor  of  the  Exchequer's  "  Budget  "  has  to 
pass  in  Parliament  before  it  becomes  law  (pp.  151—156), 
we  have  here  only  to  deal  with  the  duties  of  The  Treasury 
in  carrying  it  into  effect,  after  it  has  been  embodied  in  the 
Consolidated  Fund  Acts,  the  Finance  Act,  and  the  Appro- 
priation Act  of  the  year.  These  duties  may  be  summed  up 
under  three  heads  of  collection,  expenditure,  and  audit  of 
the  national  revenue.  Under  the  first  head,  a  brief  allusion 
must  also  be  made  to  the  important  operation  known  as 
"  raising  a  Government  loan." 

Collection  of  the  National  Revenue 

(1)  The  collection  of  the  royal  revenue  in  early  days 
had  an  indirect  as  well  as  a  direct  importance,  owing  to  the 
various  experiments  which  were  tried  before  a  satisfactory 
scheme  was  reached.  Thus,  the  ancient  plan  of  collecting 
through  the  sheriffs  of  the  counties  had  much  to  do  with 
the  bringing  into  existence  of  the  Exchequer  itself;  and  a 
mark  of  this  ancient  connection  still  survives  in  the  pictur- 
esque ceremony  by  which,  on  each  12th  of  November,  two  or 
more  sheriffs  for  each  county  (except  the  "  Palatines  ") 
are  nominated  in  the  ancient  "  Court  of  Exchequer  "  in  the 


200     TREASURY   AND    SECRETARIES   OF   STATE 

presence  of  the  Chancellor  himself.  Another  indirect  result 
was  the  creation  of  the  now  extinct  Court  of  the  Barons  of 
the  Exchequer,  which  for  centuries  acted  as  an  ordinary 
"  common  law  "  court,  though  its  functions  were  supposed 
to  be  restricted  to  the  decision  of  disputes  on  revenue  ques- 
tions, such  as  the  famous  "  Ship  Money  "  case.  Historians 
are  beginning  to  suspect,  also,  that  the  responsibility  of 
manorial  lords  for  the  "  Danegeld  "  of  their  serfs  did  a  great 
deal  to  cause  the  drawing  up  of  Domesday  Book,  and  the  de- 
fining of  the  "  feudal  system  " ;  while  it  is  quite  clear  that  the 
efforts  of  the  Exchequer,  in  the  twelfth  century,  to  intro- 
duce more  direct  methods  by  the  distribution  or  "  assess- 
ment "  of  the  liability  to  taxes  by  means  of  sworn  groups  or 
"juries,"  chosen  from  the  neighbourhood  affected,  had  much 
to  do  with  the  introduction  of  the  jury  system  of  trial  in 
ordinary  cases  (p.  10). 

Collecting  Departments 

But,  for  a  long  time  now,  the  collection  of  the  revenue  has 
been  entrusted  to  various  officials,  or  groups  of  officials,  as- 
sisted by  a  large  number  of  subordinates  or  clerks,  who  or 
which  are  really  sub-departments  of  the  Treasury.  For  the 
most  part,  these  officials  are  "  permanent  civil  servants," 
e.g.  the  Boards  of  Customs  and  Excise  and  of  Inland  Reve- 
nue, and  the  Commissioners  of  Woods  and  Forests ;  but  one 
great  "  collecting  department,"  the  Post  Office,  is,  with  that 
curious  irregularity  so  frequent  in  British  institutions,  al- 
ways held  by  a  responsible  Minister,  retiring  on  a  change  of 
Government,  and  being,  not  infrequently,  a  member  of  the 
Cabinet.  His  true  position,  however,  as  a  subordinate  of 
The  Treasury,  is  shown  by  the  fact  that  changes  in  postal 
rates  or  facilities,  which  may  involve  loss  of  revenue,  require 
the  sanction  of  that  body.  And  the  Chairmen  of  the  revenue 
boards,  important  as  their  duties  are,  do  not  speak  for  their 
departments  in  Parliament,  being  represented  there  by  the 
Chancellor  of  the  Exchequer  or  the  Financial  Secretary  to 
The  Treasury.     The  Commissioners  of  Woods  and  Forests 


TREASURY    OFFICIALS  201 

(other  than  the  President  of  the  Board  of  Agriculture), 
who  have  charge  of  the  ancient  Crown  estates,  are,  indeed, 
expressly  made  ineligible  by  Act  of  Parliament  to  the  House 
of  Commons ;  while  the  other  officials  referred  to  fall  under 
the  general  exclusion  of  the  Place  Acts  (p.  96). 

Methods  of  Collection 

The  actual  collection  of  the  various  taxes  payable  into 
the  royal  revenue  is  effected  in  various  ways.  Some  are  paid 
in  response  to  direct  demands  made  personally  on  the  tax- 
payer by  the  different  sub-departments,  e.g.  much  of  the  in- 
come and  property  tax.  Others  are  collected  on  the  passage 
of  goods  through  the  ports,  e.g.  the  customs  duties,  and  are 
known  as  "  indirect  taxes."  Others  again,  such  as  the  "  Death 
Duties  "  and  some  of  the  "  Land  Duties  "  payable  under  the 
famous  Finance  Act  of  1909-10  (p.  150)  are  collected  by 
means  of  stamps,  which  must  be  impressed  on  or  affixed  to 
the  various  documents  connected  with  the  occasions  on  which 
they  are  payable.  In  this  last  list  are  included  also  the  va- 
rious Government  duties  payable  on  transfers  of  land,  stocks, 
and  shares,  on  receipts  given  for  the  payment  of  money,  and 
on  commercial  documents,  such  as  bills  of  exchange  and 
promissory  notes,  bills  of  lading,  and  the  like.  Income  tax, 
again,  is  partly  "  collected  at  the  source,"  i.e.  deducted  by 
the  bodies  disbursing  various  forms  of  Interest  and  profits 
(p.  153),  who  afterguards  hand  the  proceeds  to  The  Treas- 
ury. Finally,  by  a  somewhat  recent  arrangement,  local 
authorities,  such  as  county  and  borough  councils,  to  be  here- 
after described  (Chapter  XIV),  collect  what  were  formerly 
called  "  assessed  taxes,"  but  are  now  more  properly  de- 
scribed as  "  local  taxation  license  duties,"  such  as  duties  on 
armorial  bearings,  dog,  gun,  and  game  licenses,  and  taxes 
on  the  use  of  vehicles  and  male  servants. 

Consolidated  Fund  Act 

One  of  the  most  important  reforms  ever  made  in  the  man- 
agement of  the   royal  revenue  was  introduced  in  the  year 


202     TREASURY   AND    SECRETARIES   OF   STATE 

1787,  as  part  of  Burke's  scheme  of  financial  reform.  Before 
that  date,  the  proceeds  of  various  taxes  were  paid  into  sepa- 
rate accounts  at  the  Exchequer;  and  various  payments  were 
charged  upon  each.  This  was  a  thoroughly  bad  system; 
because  it  was,  naturally,  impossible  to  forecast  accurately 
either  the  amount  which  would  be  produced  by  the  tax,  or 
the  amount  of  the  charges  upon  it.  Naturally  it  often  hap- 
pened that,  while  one  fund  would  be  unable  to  meet  the 
charges  upon  it,  and  so  the  public  creditors  would  have  to 
wait  for  their  money,  another  fund  had  a  huge  balance,  which 
could  not  be  made  available  for  making  up  the  deficit  else- 
where. Worse  still,  this  huge  balance  might  be  left  for  years 
in  the  hands  of  some  Commissioner  or  other  official  appointed 
to  collect  it,  who,  in  the  meantime,  invested  it  in  his  own 
name  and  drew  the  interest  or  profits  of  the  investment,  or, 
as  not  infrequently  happened,  appropriated  the  capital  to  his 
personal  uses.  By  the  Act  of  1787,  however,  the  whole,  not 
only  of  the  "  taxes,"  in  the  ordinary  sense  of  the  word,  but 
of  the  net  revenue  arising  from  Crown  lands,  the  fees  charged 
in  legal  proceedings,  and  the  payments  for  services  rendered 
by  the  State,  such  as  the  delivery  of  letters  by  the  Post  Office, 
are  made  payable  into  one  "  Consolidated  Fund  "  at  the 
Banks  of  England  or  Ireland,  to  the  account  of  the  Ex- 
chequer; and  all  payments  on  the  national  account  are  made 
payable  thereout,  in  manner  to  be  hereafter  described 
(p.  204). 

Government  Loans 

The  account  of  this  important  step  leads  naturally  to  a 
brief  mention  of  yet  another  source  from  which  the  national 
revenue,  in  the  widest  sense  of  the  term,  may  be  raised.  It 
not  infrequently  happens,  that  the  amount  arising  from  tax- 
ation and  other  normal  income  of  the  State  is  insufficient 
to  meet  the  expenditure  authorized  by  Parliament.  It  then 
becomes  necessary  to  raise  a  loan,  temporary  or  permanent, 
on  the  security  of  the  national  revenue. 


BURKE'S    REFORMS  203 

Non-funded  Debt  and  Funded  Debt 

Various  expedients  have  from  time  to  time  been  resorted 
to  for  this  purpose;  but,  substantially  speaking,  only  two 
are  now  in  use,  viz.  first,  Treasury  Bills,  or  promises  at  short 
dates,  authorized  by  Act  of  Parliament,  to  repay  loans  ad- 
vanced by  banks  and  other  business  firms,  for  temporary 
needs,  either  under  the  Consolidated  Fund  Acts  previously 
described  ("Ways  and  Means  Bills"),  or  by  special  Acts 
of  Parliament  ("Supply  Bills"),  and,  second,  permanent 
loans,  also  charged  on  the  security  of  the  Consolidated  Fund 
for  the  time  being,  and  bearing  interest  in  perpetuity,  at 
various  rates,  payable  out  of  such  fund,  and  commonly 
known  by  the  generic  name  of  "  Consols,"  ^  though  new 
names,  such  as  "  War  Loan,"  etc.,  have  recently  been  adopted 
to  distinguish  some  "  issues  "  or  loans  from  others.  It  is 
true  that  some  of  these  loans  are  repayable  at  fixed  dates ; 
but  they  are,  none  the  less,  treated  as  permanent  securities. 
INIidway  between  them,  come  Exchequer  Bonds  and  "  War 
Savings  Certificates,"  repayable  at  comparatively  short 
dates.  These  are  really  in  the  nature  of  Treasury  Bills ; 
though  they  are  not  intended  to  be  put  into  circulation  for 
commercial  purposes.  One  of  the  most  anxious  duties  of 
the  Chancellor  of  the  Exchequer  is,  to  decide  on  the  terms 
which  shall  be  offered  to  the  public  for  the  issue  of  a  loan 
authorized  by  Parliament;  and,  if  the  value  of  money  falls 
below  the  rate  of  interest  which  the  State  is  paying,  it  is  his 
duty  to  "  convert  "  the  loan  in  question  into  another,  issued 
at  a  lower  rate,  if  the  terms  of  the  former  permit  of  this 
operation. 

"  Conversion  " 

This,  of  course,  cannot  be  done  if  the  loan  is  not  repay- 
able before  a  date  which  has  not  arrived ;  but,  in  other  cases, 
the  Chancellor  of  the  Exchequer  can  usually,  in  such  circum- 
stances, by  threatening  to  pay  off  the  holders  of  Consols  "  at 

*  Because  they  represent  a  "consolidation"  of  a  large  number  of  old  mis- 
cellaneous loans. 


204     TREASURY   AND    SECRETARIES   OF   STATE 

par,"  i.e.  at  the  nominal  value  of  their  loan  (£100  for  £100 
secured),  compel  them  to  accept  a  lower  rate  of  interest. 
On  the  other  hand,  as  an  inducement  to  the  public  to  take 
up  a  loan  in  an  emergency,  he  can  offer  to  issue  it  "  at  a 
discount,"  i.e.  to  give  every  lender  of,  say,  ninety-five  pounds 
£100  of  stock. 

The  Bank  of  England 

All  these  complicated  transactions  are  carried  out  by  the 
Bank  of  England,  which  is  thus,  obviously,  in  effect  a  Gov- 
ernment institution.  But  it  remains  also  a  company  carry- 
ing on  a  large  commercial  business  of  its  own ;  ^  and  the 
most  stringent  precautions  are  taken,  in  the  various  Bank 
Charter  Acts,  to  prevent  the  Directors  of  the  Bank  from  dip- 
ping their  hands  into  the  public  funds,  or,  on  the  other  hand, 
from,  financing  Government  schemes  which  are  not  authorized 
by  the  House  of  Commons. 

Expenditure  of  National  Revenue 

(2)  Stringent  precautions  are  also  taken  to  ensure  the 
regular  and  accurate  payment  of  all  expenditure  out  of  the 
Consolidated  Fund.  A  root  principle,  as  before  explained, 
is,  that,  as  revenue  is  granted  to  the  Crown,  all  national  ex- 
penditure thereout  is  by  the  Crown.  But  it  is  an  equally 
important  principle,  that  all  expenditure  shall  be  sanctioned 
by  the  House  of  Commons,  which,  in  normal  times,  fixes, 
within  wide  limits,  not  only  the  amounts  but  the  dates  of  all 
expenditure. 

The  Comptroller  and  Auditor  General 

The  highly  important  official  whose  duty  it  is  to  see  that 
both  these  principles  are  rigidly  enforced,  is  the  Comptroller 
and  Auditor  General,  who  is  appointed  by  Letters  Patent  on 
the  rare  tenure  of  "  good  behaviour,"  whose  salary  is  charged 

*  Thus  "Bank  of  England  stock,"  or,  more  shortly,  "Bank  stock,"  is  not 
equivalent  to  "Consols,"  but  means  a  holding  in  the  capital  of  the  Bank  itself  as 
a  commercial  concern.    The  rate  of  dividend  on  it  is  generally  very  high. 


GOVERNMENT    FINANCE  205 

on  the  "  Consolidated  Fund,"  and  who  can  only,  in  the  ab- 
sence of  definite  misconduct,  be  dismissed  on  the  request  of 
both  Houses  of  Parliament,  while  he  cannot  hold  any  other 
office  "  at  pleasure  "  under  the  Crown.  He  presides  over  the 
Exchequer  and  Audit  Department,  and,  upon  the  requisition 
for  money  by  The  Treasury,  signed  by  two  of  the  "  Lords  " 
under  the  requirements  of  the  Act  of  1849,  before  alluded 
to  (p.  198),  he  examines  the  demand  with  care,  to  see  that 
its  purpose  and  amount  have  been  duly  authorized  by 
Parliament. 

"  Consolidated  Fund  Services  " 

If  it  forms  part  of  the  "  Consolidated  Fund  Services," 
i.e.  those  payments  which,  such  as  the  interest  on  the  various 
national  debts,  the  "Civil  List"  (or  royal  income),  the 
judges'  salaries,  and  a  few  authorized  pensions,  are  pay- 
able as  of  course  year  by  year,  he  merely  issues  a  credit  on 
the  Exchequer  balance  at  the  Bank  of  England  or  Ireland 
for  payment  of  the  amount. 

"  Supply  Services  " 

If,  however,  the  demand  is  on  account  of  "  supply  services," 
i.e.  payments  only  authorized  from  year  to  year  by  Parlia- 
ment, which  include  by  far  the  larger  part  of  the  national 
expenditure,  he  has  further  to  see,  not  only  that  the  pro- 
posed payment  comes  within  the  limit  of  the  Parliamentary 
sanction,  but  bears  the  royal  sign-manual  directing  The 
Treasury  to  expend  so  much  out  of  the  sum  voted  by  Parlia- 
ment for  that  particular  purpose. 

In  either  case,  the  Bank  of  England  or  Ireland,  on  receiv- 
ing the  order  duly  approved  by  the  Comptroller,  allows  The 
,  Treasury  to  draw  for  the  amount,  which  is  either  placed  to 
the  credit  of  the  department  concerned,  or  to  that  of  the 
Paymaster-General,  another  important  official,  who  is,  how- 
ever, a  member  of  the  Ministry,  and,  therefore,  nominally  at 
least,  responsible  to  Parliament,  for  distribution  to  the  par- 
ticular department  through  which  the  payment  is  actually 


206     TREASURY   AND    SECRETARIES   OF   STATE 

made.  Thus  a  large  part  of  the  national  expenditure  passes, 
nominally  at  least,  through  the  hands  of  the  Paymaster- 
General;  and,  formerly,  the  holders  of  the  office,  being  paid 
by  fees  varying  with  the  amount  passing  through  their  hands, 
anmssed  enormous  fortunes.  It  was  one  of  the  noblest  acts 
of  Burke  that,  though  a  really  poor  man,  he  refused,  when 
Paymaster,  to  take  the  enormous  emoluments  of  his  office, 
and  thereby  set  an  example  which  has  since  been  widely  fol- 
lowed, by  the  practical  abolition  of  all  payments  by  fees  in 
Government  offices,  and  the  substitution  of  fixed  salaries 
which  are  not,  however,  except  in  the  rare  cases  before  men- 
tioned, charged  on  the  "  Consolidated  Fund,"  but  voted  by 
Parliament  year  by  year.  Parliament  has  thus  an  additional 
and  very  powerful  hold  on  the  great  bulk  of  the  "  perma- 
nent "  officials  of  the  Crown. 

Audit  of  National  Accounts 

(3)  Finally,  it  is  necessary  to  see  that  the  spending  de- 
partments do  actually  expend  the  national  revenue  in  man- 
ner authorized  by  Parliament;  and  this  object  is  supposed 
to  be  achieved  by  a  rather  severe  process  of  "  audit." 

In  the  first  place,  the  various  departments  engaged  in  the 
expenditure  on  "  supply  services  "  render  monthly  accounts 
to  the  Comptroller  of  their  actual  expenditure ;  and  these  ac- 
counts are  carefully  examined  by  him  before  being  passed 
on  to  The  Treasury,  not  merely  to  see  that  they  balance,  but 
to  make  sure  that  the  items  of  expenditure  have  been  duly 
authorized.  These  monthly  accounts  lead  up  to  the  "  ap- 
propriation accou»ts."  In  the  case  of  "  Consolidated  Fund 
Services,"  the  account  is  rendered  by  The  Treasury  itself 
to  the  Comptroller,  who  has,  all  along,  been  carefully  watch- 
ing the  receipts  and  expenditure  of  the  national  revenue  by 
the  Banks  of  England  and  Ireland,  by  means  of  accounts 
daily  furnished  by  those  institutions,  and  the  action  of  the 
spending  departments  by  means  of  local  officials. 


PARLIAMENTARY    AUDIT  207 

Parliamentary  Audit 

The  "  appropriation  accounts  "  are  then  laid  before  Par- 
liament b}^  The  Treasury,  and  the  accounts  of  the  Consoli- 
dated Fund  Services  by  the  Comptroller,  They  are  all  re- 
ferred by  the  House  of  Commons  to  its  Committee  on  Public 
Accounts,  an  important  body  which  has  existed  since  1786, 
and  which  makes  an  annual  report  to  the  House  of  Com- 
mons. It  is  obvious,  however,  that,  in  time  of  war,  the  publi- 
cation of  national  expenditure,  even  to  the  House  of  Com- 
mons, can  only  be  allowed  within  strict  limits ;  and  it  is  one 
of  the  pressing  problems  of  administration  to  devise  a  plan, 
by  which  strict  Parliamentary  control  over  national  expendi- 
ture can  be  reconciled  with  the  necessary  secrecy. 

The  Treasury  as  a  Spending  Department 

Before  leaving  The  Treasury,  reference  ought,  perhaps, 
to  be  made  to  a  recent  development  which  has  given  rise  to 
a  good  deal  of  criticism,  as  being  contrary  to  the  proper 
duties  of  that  institution.  As  we  have  seen,  the  payments 
sanctioned  by  The  Treasury  are  not  usually  expended 
directly  by  it,  but  handed  over  to  the  Paymaster-General  for 
distribution  to  other  departments,  who  subsequently  render 
accounts  of  them  to  the  Comptroller.  At  least  this  is  true 
of  the  great  "  spending  "  departments,  such  as  the  Admi- 
ralty, the  War  Office,  and  the  Education  Department ;  though 
a  certain  number  of  minor  spending  departments,  such  as 
the  National  Gallery,  the  British  Museum,  and  the  Civil 
Service  Commission  (which  conducts  the  examinations  for 
the  "permanent  "  civil  service),  have  no  Minister  to  repre- 
sent them  in  Parliament,  and  so  are  more  directly  "  under 
The  Treasury."  Recently,  however,  the  establishment  of  a 
vast  and  costly  scheme  of  National  Health  Insurance,  guar- 
anteed by  the  State,  has  been  set  up ;  and,  though  the  working 
of  this  scheme  involves  the  annual  expenditure  of  many  mil- 
lions, and  an  enormous  amount  of  minute  investigation,  its 
administration  was,  for  a  short  time,  in  the  hands  of  a  Min- 


208     TREASURY   AND   SECRETARIES   OF   STATE 

ister  who  was  also  Financial  Secretary  to  The  Treasury. 
The  details  of  this  scheme  can  hardly  be  said  to  form  part 
of  the  government  of  the  British  Empire;  but,  briefly,  it 
may  be  said  that  all  employees  of  sixteen  years  of  age  and 
upwards  are,  with  certain  exceptions,  compulsorily  insured 
against  destitution  arising  from  sickness,  and  guaranteed 
medical  treatment  when  necessary,  and  all  workmen  employed 
in  certain  trades  are  compulsorily  insured  against  unemploy- 
ment, by  means  of  contributions  levied  from  themselves  and 
their  employers,  supplemented  by  substantial  grants  from 
moneys  provided  by  Parliament.  The  Unemployment  Fund 
is  under  the  control  of  the  Board  of  Trade ;  but  the  National 
Health  Insurance  Fund  is  under  the  control  of  Insurance 
Commissioners  appointed  by  The  Treasury,  though  its  actual 
distribution  is  entrusted  to  Local  Insurance  Committees, 
aided  by  Medical  Committees,  and  to  "  approved  societies," 
i.e.  to  various  Provident  and  Benefit  Societies,  mainly  formed 
by  the  employees  themselves,  which  were  in  existence  at  the 
passing  of  the  Act,  and  whose  stability  has  stood  certain  in- 
vestigations. The  Insurance  Commissioners,  an  incorporated 
body,  are  now,  however,  an  independent  department  repre- 
sented by  a  separate  Parliamentary  chief;  and  the  accounts 
of  the  Insurance  Fund  are  audited  by  the  Comptroller  and 
Auditor  General  (p.  204),  though  in  manner  directed  by 
The  Treasury.  It  will  thus  be  seen,  that  the  former  agita- 
tion on  the  subject  of  Insurance  Finance,  which  was  not 
uncoloured  by  personal  and  party  feeling,  has  now  lost  its 
chief  force. 

The  Treasury  as  an  Imperial  Organ 

Finally,  it  should  be  noticed  that  The  Treasury  of  the 
United  Kingdom  is  hardly  entitled  to  rank  as  an  Imperial 
institution  in  the  full  sense  of  the  word,  inasmuch  as  each 
of  the  dependencies  ("  self-governing  "  and  "  Crown  ")  has 
its  own  independent  Treasury,  the  funds  whereof  are  col- 
lected in,  and  expended  for,  the  benefit  of  that  dependency 
alone  (p.  71)  ;  while  the  same  is  true,  as  has  also  been  ex- 


EARLY    SECRETARIES    OF    STATE  209 

plained  (p.  85),  of  the  Treasury  of  British  India.  It  is  only 
when  loans  or  grants  out  of  the  Imperial  Exchequer  —  i.e. 
out  of  moneys  paid  or  guaranteed  by  the  taxpayers  of  the 
United  Kingdom  —  are  made  by  the  Imperial  Parliament  for 
the  assistance  of  any  of  the  dependencies  on  the  proposal  of 
the  Chancellor  of  the  Exchequer,  that  The  Treasury  at 
Whitehall  can  be  said  to  be  acting  in  a  strictly  Imperial 
capacity. 

The  Secretaries  of  State 

Next  in  point  of  antiquity  and  importance  to  The  Treas- 
ury is  the  office  of  Secretary  of  State.  It  can  be  traced  as 
far  back  as  the  reign  of  Henry  III,  when  a  "  King's  Secre- 
tary "  is  found  relieving  the  Lord  Chancellor  of  some  of  the 
clerical  duties  of  the  Chancery  which  did  not  involve  the  use 
of  the  Great  Seal.  A  second  official  of  this  name,  possibly 
to  conduct  the  foreign  correspondence  of  'the  King,  was  ap- 
pointed in  1433;  and,  in  the  troublous  reign  of  Henry  VI, 
the  Secretaries  came  to  be  looked  upon  as  the  regular  mouth- 
pieces of  the  Privy  Council,  which  was  then  the  chief  seat  of 
Government.  Their  growing  importance  was  marked  by 
the  appearance  of  the  title  "  Principal  Secretary  "  in  the 
latter  half  of  the  fifteenth  century;  and  the  holders  of  the 
office,  whose  special  symbol  of  authority  was  the  "  signet," 
were  placed  by  the  Statute  of  Precedence  of  1539  above 
other  persons  of  their  own  degree  or  rank,  while  a  royal  war- 
rant of  the  same  year,  by  a  curious  anticipation  of  modern 
practice,  directed  them  to  attend  Parliament  continuously. 
In  the  reign  of  Elizabeth,  the  office  of  Secretary  of  State, 
which  had  been  held  by  Thomas  Cromwell  under  Henry  VIII, 
grew  still  further  in  importance,  and  was  filled  by  such  states- 
men as  the  Cecils,  Sir  Thomas  Smith,  and  Sir  Francis  Wal- 
singham ;  while  its  increased  dignity  was  marked  by  the 
adoption  of  the  title  of  "  Queen's  Majesty's  Secretaries  of 
State."  After  the  Restoration,  it  was  part  of  the  policy  of 
Clarendon  that  the  Secretaries  of  State  should  be  "  of  all 
Committees  of  the  Council  " ;  and,  when  that  body  lost  its 


210     TREASURY   AND    SECRETARIES   OF   STATE 

real  power  (p.  93),  much  of  it  seems  to  have  passed  to  the 
Secretaries.  At  any  rate,  in  the  arguments  in  the  famous 
"  General  Warrant "  cases  (p.  34)  some  rather  extrava- 
gant claims  were  put  forward  on  behalf  of  the  holders  of  the 
office,  which  could  hardly  have  been  justified  on  other 
grounds. 

Division  of  Business 

Meanwhile,  at  the  Revolution  of  1688,  the  duties  of  the 
office  had  been  definitely  divided  between  a  "  Northern  "  Sec- 
retary, who  corresponded  with  France,  Germany,  and  the 
Scandinavian  Powers,  and  a  "  Southern,"  who  transacted 
business  with  the  countries  of  the  south  of  Europe,  and  man- 
aged Home  and  Irish  affairs.  But  this  obviously  incon- 
venient arrangement  was  altered  in  the  year  1782,  when  the 
recently  created  third  Secretaryship  of  State  for  the  Colonies 
was  abolished  (p.  69),  and  the  present  division  between 
"  Home  "  and  "  Foreign  "  affairs  was  established.  It  should 
be  carefully  remembered,  however,  that  though,  for  purposes 
of  despatch  of  business,  the  various  Secretaries  of  State  have 
each  his  appropriate  sphere  of  work,  yet,  in  strict  theory, 
all,  or  almost  all,  of  the  powers  of  a  Secretary  of  State  can 
be  exercised  by  any  of  the  Secretaries ;  for  it  is  very  rare 
that  these  duties  are  expressly  conferred  more  precisely 
than  on  "  one  of  His  Majesty's  Principal  Secretaries  of 
State."  Moreover,  until  its  abolition  in  1851,  they  all  used 
the  Signet  Office,  in  which  the  Clerks  of  the  Signet  performed 
their  duties. 

Leaving  aside  the  newer  Secretaries  of  State  for  War,  the 
Colonies,  India,  and  the  Air,  of  whom  we  have  already 
spoken,  we  proceed  now  to  consider  the  duties  of  the  Secre- 
taries of  State  for  Home  and  Foreign  Affairs. 

The  "  Home  "  Seceetaby 

The  Home  Secretary  stands  in  a  relation  of  peculiar  close- 
ness to  the  Crown.  Though  other  Ministers  can,  and  do, 
act  as  "  Minister  in  attendance,"  yet  it  is  the  Home  Secre- 


THE    HOME    SECRETARY  211 

tary  on  whom  the  King  chiefly  relies  to  keep  him  in  touch 
with  details  of  internal  administration.  Thus  the  Home 
Secretary  prepares  and  countersigns  the  numerous  "  war- 
rants," or  orders,  to  which  the  King  affixes  his  "  sign  man- 
ual "  or  personal  signature ;  except  in  the  cases  in  which  the 
preparation  and  counter-signature  of  other  officials  is  ex- 
pressly required.  He  communicates  the  King's  pleasure  to 
bodies  having  official  or  quasi-official  authority,  such  as  the 
Convocations  of  the  Established  Church  (Chapter  XII), 
and  the  "  States  "  or  "  Courts  "  of  the  Channel  Islands  and 
the  Isle  of  Man  (p.  55),  which  are  not  within  the  sphere  of 
the  Colonial,  but  of  the  Home  Office.  He  also  recommends 
for  appointments  to  ordinary  ecclesiastical  benefices  in  the 
gift  of  the  Crown,  as  distinct  from  that  of  the  Lord  Chan- 
cellor. He  places  the  "  fiat,"  or  permission  to  proceed,  on 
those  "  petitions  of  right  "  which  are  the  direct  legal  means 
of  obtaining  redress  for  an  error  by  which  the  Crown  has 
caused  a  private  citizen  to  suffer.^ 

Home  Secretary  and  the  Police 

The  Home  Secretary  also  exercises  a  good  many  of  the 
powers  of  the  Crown  in  relation  to  one  of  the  oldest  of  the 
King's  duties,  viz.  the  maintenance  of  internal  order  (p.  8). 
It  is  true  that,  as  has  been  pointed  out  before  (p.  9),  the 
police  forces  of  Great  Britain  (those  of  Ireland  are  on  a  dif- 
ferent footing)  are  not,  with  the  important  exception  of  the 
Metropolitan  Police,  under  the  direct  control  of  the  central 
government.  But  the  Home  Secretary,  through  his  subordi- 
nates, inspects  and  criticizes  the  police  forces  maintained  by 
the  county  and  borough  authorities  (p.  334)  ;  and  it  is  only 

*  Inasmuch  as  every  ordinary  criminal  prosecution  or  civil  action  begins 
with  a  document  in  the  King's  name,  it  is  naturally  impossible  to  direct  such  a 
proceeding  against  the  King  himself.  But  actions  for  the  recovery  of  property 
or  the  enforcement  of  a  contract  can  be  brought,  in  effect,  against  the  Crown, 
by  the  forin  known  as  a  "petition  of  right,"  which  wall  be  tried  as  an  ordinary 
action;  the  Law  Officers  and  the  Treasury  Solicitor  defending  the  Crown's  in- 
terests. But  no  allegation  of  "crime,"  or  even  of  "tort"  {i.e.  ci\nl  wrong  not 
being  a  breach  of  contract)  can  be  made  against  the  Crown  in  such  a  proceeding; 
because  "the  King  can  do  no  wrong." 


212     TREASURY   AND    SECRETARIES   OF   STATE 

upon  his  certificate  as  to  its  satisfactory  character,  that  a 
grant  is  made  from  the  Exchequer  in  aid  of  the  cost  of  the 
maintenance  of  any  such  force. 

Judicial  Arrangements 

Likewise  in  this  capacity  the  Home  Secretary  approves 
the  arrangements  for  the  "  assizes  "  or  circuits  of  the  judges 
(p.  256),  maintains  and  manages  prisons,  and  recommends 
for  the  appointment  of  stipendiary  or  police  magistrates, 
and  recorders  or  judges  of  borough  quarter  sessions  (p.  256). 
It  is,  probably,  also  in  this  capacity,  though  the  arrangement 
appears  to  be  a  little  awkward,  that  the  Home  Secretary 
exercises  the  important  and  difficult  duties  arising  under  the 
Extradition  Acts,  based  on  treaties  made  with  foreign  States 
for  the  mutual  delivery  up  of  their  criminals,  or  alleged 
criminals,  who  have  fled  to  British  territory. 

Extradition  Proceedings 

Inasmuch  as  England  has  long  cherished  the  "  right  of 
asylum  "  for  political  refugees,  great  care  is  taken  not  to 
yield  up  to  a  foreign  Government,  as  a  criminal,  a  person 
who  may  be  merely  unpopular  with  that  Government  on  ac- 
count of  his  political  opinions.  But  the  necessary  examina- 
tion of  the  facts  is  not  conducted  by  the  Home  Secretary, 
who  need  not  be  (though  he  very  frequently  is)  a  trained 
lawyer,  but  by  a  (stipendiary)  magistrate  (p.  249),  who 
examines  the  case,  much  as  if  the  refugee  were  a  British 
subject  accused  of  a  criminal  offence  in  this  country.  If  the 
magistrate  comes  to  the  conclusion  that  there  is  a  prima 
facie  case  of  real  crime  (according  to  the  law  of  the  refugee's 
country)  against  the  refugee,  the  latter  is  handed  over  to 
the  diplomatic  representative  of  that  country,  on  whose  appli- 
cation he  was  originally  arrested.  But  the  formal  order  for 
his  delivery  must  be  under  the  hand  and  seal  of  the  Secretary 
of  State, 


PARDON    OF    CRIMINALS  213 

Deportation  of  Aliens 

Very  like  his  duties  in  connection  with  extradition,  but 
even  more  anxious  and  responsible,  are  the  duties  of  the 
Home  Secretary  with  regard  to  the  internment  and  deporta- 
tion of  ahens  under  the  Aliens  Restriction  Act  of  1914,  and 
the  various  Defence  of  the  Realm  Acts.  The  latter  are,  no 
doubt,  "  temporary  "  or  "  war  "  measures  only.  But  the 
former  is  not ;  and  it  may  confidently  be  predicted  that,  at 
any  rate  for  several  years  to  come,  a  closer  and  more  careful 
surveillance  than  has  hitherto  existed  will  be  exercised  over 
the  subjects  of  foreign  States  who  are  resident  within  the 
Empire. 

Prerogative  of  Pardon 

Passing  by  the  somewhat  doubtful  power  claimed  by  a 
Secretary  of  State,  and  favoured  by  high  legal  authority, 
of  committing  a  person  charged  with  high  treason  for  trial, 
without  the  usual  preliminary  examination  before  a  magis- 
trate, we  may  mention  what  is,  perhaps,  one  of  the  most  pain- 
ful of  all  duties  imposed  upon  the  Home  Secretary,  viz.  the 
duty  of  advising  the  King  as  to  the  exercise  of  his  royal 
prerogative  of  pardoning  a  criminal  condemned  to  suffer 
death  or  other  penalty.  In  the  exercise  of  this  duty,  the 
Home  Secretary  is,  no  doubt,  influenced  by  any  recommenda- 
tion to  mercy  which  the  jury  may  have  made  at  the  trial,  by 
any  circumstances  which  may  have  come  to  light  since  the 
trial,  by  the  number  and  weight  of  petitions  for  a  pardon 
addressed  to  the  Crown,  and,  above  all,  by  the  confidential 
report  on  the  case  made  by  the  judge  who  tried  it.  But, 
after  all,  the  direct  responsibility  for  the  decision  rests  with 
the  Home  Secretary ;  though  it  is  possible  that,  in  this  mat- 
ter, the  personal  wishes  of  the  King  count  for  a  good  deal. 
It  should  be  carefully  noted,  that  a  pardon  granted  by  the 
Crown  before  conviction  would  be  grossly  unconstitutional, 
as  an  attempt  to  stay  the  course  of  justice;  though  it  would 
seem  to  be  legally  effective,  except  in  the  case  of  an  im- 


214     TREASURY   AND   SECRETARIES   OF   STATE 

peachment  (p.  163),  where  it  is  expressly  made  void  by  the 
Act  of  Settlement  of  1700.  Moreover,  two  indirect  forms  of 
enabling  persons  to  commit  offences  with  impunity  by  guar- 
anteeing them  pardon  in  advance,  viz.  the  "  suspending  "  of 
the  operation  of  a  statute  for  a  limited  time,  and  the  "  dis- 
pensing "  with  the  obligation  to  obey  it  in  the  case  of  particu- 
lar persons,  were  declared  illegal  by  the  Bill  of  Rights  of 
1689,  though  in  a  way  which  leaves  it  just  open  to  say,  that 
the  practice  of  "  dispensing  "  with  a  rule  of  the  "  common  " 
or  non-statutory  law  (p.  13)  is  not  entirely  excluded.  More- 
over, though,  in  strict  law,  the  Crown  can  be  compelled  to 
lend  its  name  to  any  prosecution,  yet  its  officers  can,  if  they 
think  that  any  prosecution  is  frivolous  or  unwarranted, 
throw  the  whole  burden  of  it  on  the  person  instigating  it, 
under  the  Vexatious  Indictments  Acts,  or,  if  the  prosecution 
is  really  by  the  Crown,  the  Attorney-General  can  enter  a 
nolle  prosequi,  or  refusal  to  proceed,  which,  as  the  Director 
of  Public  Prosecutions  is  a  subordinate  of  the  Home  Secre- 
tary, must  be  regarded  as  the  latter's  act. 

Welfare  Legislation 

Finally,  before  the  recent  development  of  newer  depart- 
ments, such  as  the  Local  Government  Board  and  the  Board 
of  Agriculture  and  Fisheries,  a  good  deal  of  the  "  welfare  " 
legislation  which  sprang  into  such  prominence  after  the  pass- 
ing of  the  first  Reform  Act,  was  entrusted  to  the  enforce- 
ment of  the  Home  Secretary.  Much  of  this  has  now  been 
transferred  to,  or,  in  the  modern  examples,  originally  con- 
ferred on,  other  departments ;  but  the  important  powers  still 
exercised  by  the  Home  Secretary  in  the  matter  of  coal  and 
other  mines,  and  factories,  serve  to  bring  out  the  miscellane- 
ous character  of  his  duties. 

The  Foreign  Secretary  and  Diplomatic  Work 

The  Secretary  of  State  for  Foreign  Affairs,  as  his  title 
implies,  is  concerned  with  the  intercourse  between  the  British 
Empire  and  foreign  countries.     This  is  of  two  kinds :  diplo- 


DIPLOMATIC    INTERCOURSE  215 

matic,  and  commercial  or  civil.  The  former  is  directly  con- 
nected with  foreign  Governments,  and  concerns  such  matters 
as  the  protection  of  British  political  interests,  the  safety  of 
British  subjects  abroad,  the  negotiation  and  carrying  out 
of  treaties,  the  maintenance  of  friendly  relations  between 
Governments,  and,  generally,  the  guarding  and  shaping  of 
British  interests  in  the  world  outside  the  Empire. 

Ambassadors 

It  is  carried  on  either  directly  by  means  of  correspondence 
issued  in  the  name  of  the  King,  and,  in  most  cases,  actually 
submitted  for  his  approval,  or  through  agents,  known  as 
Ambassadors,  or  Ministers,  appointed  by  the  King,  on  the 
recommendation  of  the  Foreign  Secretary,  to  act  as  his  rep- 
resentative at  foreign  Courts.  These  persons,  though  they 
are  sometimes  called  "  Ministers,"  are  not  part  of  the  "  Min- 
istry of  the  day,"  i.e.  they  do  not  resign  when  the  Govern- 
ment is  defeated ;  and  they  are  supposed  to  keep  a  watchful 
eye  upon  all  that  goes  on  in  the  countries  in  which  they  re- 
side, which  can  at  all  affect  British  interests.  In  former 
days,  when  the  means  of  communication  were  slow,  these  per- 
sons were  of  great  importance;  but,  with  the  development  of 
rapid  communication  by  train  and  telegraph,  their  impor- 
tance has  dwindled,  and  they  are  even  sometimes  accused  of 
causing  more  mischief  than  they  prevent.  This  is  probably 
untrue,  at  least  as  regards  the  more  distinguished  diplomatic 
representatives  of  the  Empire;  but,  doubtless,  a  great  deal  of 
malicious  gossip  goes  on  in  the  somewhat  artificial  atmo- 
sphere of  "  diplomatic  circles,"  and  is  fostered  by  the  less 
scrupulous  of  the  foreign  correspondents  of  newspapers, 
who  find  in  it  good  material  for  sensational  despatches. 

"  Secret  Diplomacy  " 

A  more  serious  question  arises  in  connection  with  "  secret 
diplomacy  "  generally,  that  is,  the  conduct  of  foreign  negoti- 
ations unknown  to  Parliament  or  people,  which  may  involve 
the  Empire  in  the  gravest  responsibilities.     It  is,  of  course, 


216     TREASURY   AND    SECRETARIES   OF   STATE 

true,  that  no  such  negotiations  which  involve  any  alteration 
in  the  law  can  be  effective  until  they  have  been  sanctioned  by 
Act  of  Parliament ;  such,  for  example,  as  the  Foreign  Copy- 
right Acts,  which  gave  effect  to  the  various  *'  conventions  '* 
with  foreign  countries  on  that  subject.  It  is  true,  also,  that, 
by  refusing  to  vote  the  money  necessary  to  carry  out  obliga- 
tions thus  incurred.  Parliament  can,  in  effect,  render  them 
inoperative.  But  the  Crown  is,  by  the  law  of  the  Constitu- 
tion, the  sole  representative  of  the  Empire  to  the  outside 
world;  and  to  repudiate  negotiations  entered  into  in  its 
name  would  deal  a  severe  blow  at  British  reputation  and 
credit  abroad,  while,  even  in  such  vital  matters  as  the  cession 
of  territory  and  the  declaration  of  war  and  conclusion  of 
peace,  the  Crown  claims  the  legal  right  of  acting  without  the 
consent  of  Parliament. 

In  practice,  no  doubt,  the  position  is  not  so  dangerous  as 
it  seems.  For  Foreign  Ministers  have  a  wholesome  dread  of 
Parliamentary  condemnation;  while  the  necessity  for  the 
formal  approval  of  a  treaty  by  Parliament,  as  in  the  case 
of  the  Senate  of  the  United  States,  is  attended  by  some  seri- 
ous drawbacks.  The  same  objection  applies  to  all  open  ne- 
gotiations. Crises  which,  if  handled  confidentially,  can  be 
discreetly  averted,  are  apt  to  become  distinctly  more  unman- 
ageable when  they  are  discussed  in  public  with  the  aid  of  an 
excited  Press,  bent  on  arousing  the  passions  of  its  readers. 
The  sanest  proposition  for  dealing  with  what  is,  admittedly, 
a  difficult  problem  in  statesmanship,  appears  to  be  the  ap- 
pointment, at  the  commencement  of  each  Parliament,  of  a 
Joint  Committee  on  Foreign  Relations,  composed  of  repre- 
sentatives of  all  parties,  to  which  the  Foreign  Secretary 
should  continually  report  in  confidence  the  progress  of  inter- 
national negotiations.  A  seat  on  such  a  committee  would 
naturally  be  an  object  of  ambition  with  the  ablest  members 
of  both  Houses.  It  need  not  contain  members  of  the  Govern- 
ment; for  the  Cabinet,  at  least,  would  be  even  more  inti- 
mately in  touch  with  the  working  of  the  Foreign  Office.  It 
might  have  power,  which  would,  naturally,  only  be  exercised 


SECRET    DIPLOMACY  —  PASSPORTS        217 

in  grave  matters,  of  addressing  the  Crown  directly  upon  any 
tendencies  in  international  affairs  which  appeared  to  it  to  be 
dangerous.  In  the  last  resort,  it  might  have  power  to  report 
to  either  House,  which,  in  joint  or  separate  session,  open  or 
secret,  as  might  be  determined,  would  be  able  to  consider  and 
act  upon  the  report.  Such  a  committee,  if  wisely  selected, 
would  combine  the  wisdom  and  authority  of  a  Council  of 
Elder  Statesmen  with  the  popular  mandate  of  a  representa- 
tive body. 

Passports 

It  is,  of  course,  as  the  Minister  in  charge  of  international 
affairs  that  the  Foreign  Secretary  issues  "  passports  "  to 
British  subjects,  bespeaking  for  them  a  favourable  reception 
in  foreign  countries,  and,  in  a  sense,  guaranteeing  their  re- 
spectability. The  value  of  such  documents  varies  greatly 
according  to  the  country  in  which  the  traveller  journeys. 
In  some  countries,  at  least  in  normal  times,  they  are  almost 
unnecessary.  In  others,  they  are  of  distinct  value,  and,  for 
some  purposes,  essential.  In  others  again,  they  are  abso- 
lutely necessary,  if  the  traveller  wishes  to  avoid  being  shot 
as  a  spy,  or  at  least  cast  into  prison  as  a  suspicious  person. 
In  such  countries,  the  simple  passport  is  not,  as  a  rule, 
enough ;  it  must  be  "  vise,"  i.e.  examined  and  approved,  by  a 
representative  of  the  country  in  which  the  holder  proposes  to 
travel.  It  is  probable  that,  at  any  rate  for  some  years,  the 
passport  regulations  of  Europe  will  be  much  severer  than 
during  the  last  half  century. 

Commercial  Work  of  the  Foreign  Office 

Of  the  commercial  duties  of  the  Foreign  Office,  important 
as  they  are,  little  need  be  said  in  a  book  like  the  present. 
They  consist  in  looking  after  the  material  welfare  of  British 
subjects  abroad,  and  the  fostering  of  commercial  intercourse 
between  the  subjects  of  the  British  Empire  and  those  of  other 
States. 


218     TREASURY   AND    SECRETARIES   OF   STATE 

Consuls 

They  are  carried  out  by  "  consular  "  representatives  of 
various  grades,  some  of  whom  are  professional  officials,  de- 
voting their  whole  time  to  their  official  duties,  and  paid  sub- 
stantial salaries ;  while  others  are  merchants,  often  not  Brit- 
ish subjects,  who  render  assistance  in  many  ways  to  British 
subjects  in  need  of  various  kinds,  such  as  means  of  informa- 
tion, identity,  introductions,  and  the  like. 

Protectorates 

Finally,  we  may  mention  again  the  powers  and  duties  of 
the  Foreign  Secretary  in  the  matter  of  Protectorates 
(pp.  87-92),  i.e.  those  countries  in  which,  though  they  are 
not  actually  parts  of  the  British  Empire,  the  British  Crown 
exercises  great  and  even  predominant  influence.  Not  all  of 
them  are  in  charge  of  the  Foreign  Secretary;  some  are  within 
the  sphere  of  operations  of  the  India  Office,  others  of  that 
of  the  Colonial  Office.  But  the  Foreign  Secretary  is,  nor- 
mally, the  official  who,  by  virtue  of  the  Foreign  Jurisdiction 
Acts,  upholds  the  authority  of  the  Crown  in  respect  to 
British  residents  in  such  countries,  and  deals,  through  his 
officials  on  the  spot,  with  the  native  rulers. 


CHAPTER    X 

THE    INDIVIDUAL    OFFICES    AND    THE    NEWER 
DEPARTMENTS 

This  will,  it  is  feared,  be  a  somewhat  miscellaneous  chapter; 
and  its  connection  with  the  government  of  the  Empire  may 
not  at  first  seem  to  be  clear.  But  the  fact  is,  that  it  is 
impossible,  in  dealing  with  an  historic  growth  like  the  British 
Empire,  which  has  developed,  to  a  great  extent,  out  of  the 
institutions  of  the  British  Islands,  to  draw  a  sharp  line  of 
distinction  between  Imperial  and  Island  institutions.  The 
former  are  slowly  detaching  themselves  from  the  latter,  and 
assuming  a  truly  Imperial  character;  but  there  is  still  a 
border-land  of  which  it  is  difficult  to  say  whether  it  may  be 
regarded  as  imperial,  or  purely  local.  In  any  case,  the  in- 
stitutions of  the  Island  State  have  an  interest  in,  and  a  bear- 
ing on,  imperial  affairs ;  and  a  brief  account  of  them  may 
be  forgiven. 

The  Great  Offices  of  State 

We  begin  with  a  few  words  about  certain  State  offices 
which  may  be  called  "  individual,"  because  they  are  exercised 
chiefly  by  their  holders  in  person,  and  do  not  involve  the  ad- 
ministration of  large  establishments  or  offices.  Most  of  them 
are  of  old  standing;  some  of  them  are  sinecures,  i.e.  have 
no  really  arduous  duties  directly  attached  to  them,  but  are 
preserved  for  indirect  purposes ;  some  are  of  very  great  prac- 
tical importance,  and  involve  the  exercise  of  the  highest  skill ; 
some  are  hereditary,  some  change  with  each  successive  Min- 
istry ;  one,  at  least,  may  be  regarded  as  intermittent.  There 
seems  to  be  no  possibility  of  classification. 


220  THE    INDIVIDUAL    OFFICES 

LoED  High  Chancelloe 

One  of  the  oldest,  and,  perhaps,  the  most  Important,  is  the 
office  of  Lord  High  Chancellor,  or  Keeper  of  the  Great  Seal 
of  England.  It  seems  to  have  been  the  first  of  the  purely 
"  business  "  offices,  as  distinct  from  the  military  and  house- 
hold offices  about  the  King's  Court ;  at  any  rate  if  we  except 
the  still  older  office  of  the  Great  Justitiar,  which  became  ex- 
tinct in  the  thirteenth  century,  soon  after  the  English  Kings 
lost  their  Norman  possessions.  The  name  "  Chancellor  "  is 
said  to  be  derived  from  the  cancelli,  or  screen  in  the  King's 
chapel,  behind  which  the  King's  scribes  worked.  At  any  rate 
it  is  clear  that,  until  the  sixteenth  century,  the  office  was 
always  held  by  a  cleric  (the  great  Sir  Thomas  More  was  the 
first  lay  Chancellor)  ;  and  this  probably  accounts  for  the 
fact  that  it,  unlike  most  of  the  other  ancient  State  offices,  did 
not  become  hereditary,  and,  consequently,  merely  ceremonial. 

Keeper  of  the  Great  Seal, 

The  Lord  High  Chancellor  was,  in  fact,  at  first  merely  the 
King's  chief  scribe,  to  whom  was  entrusted  the  holding  of  the 
royal  seal,  which,  in  the  days  when  the  arts  of  reading  and 
writing  were  rare  accomplishments,  was  necessary  to  authen- 
ticate each  royal  document.  As  the  King's  business  grew  in 
volume,  the  importance  of  the  "  Chancery  "  and  its  occupant 
increased.  From  being  a  mere  scribe,  the  latter  became  a 
trusted  adviser  of  the  King,  especially  in  matters  of  discre- 
tion or  "  conscience."  He  appointed  to  livings  in  the  King's 
gift.  He  advised  the  King  as  to  the  exercise  of  his  preroga- 
tive of  "  grace,"  i.e.  the  redress  of  grievances  for  which  the 
ordinary  or  "  common  "  law  (p.  13)  made  no  provision;  and 
in  that  capacity  he  rapidly  built  up  for  himself,  in  the  four- 
teenth and  fifteenth  centuries,  a  great  judicial  position  as 
the  dispenser  of  "  equity  "  in  the  Court  of  Chancery. 


THE    LORD    HIGH    CHANCELLOR  221 

The  Court  of  Chancery 

The  distinction  between  "  common  law  "  and  "  equity  " 
is  too  technical  to  be  the  subject  of  discussion  in  a  book  on 
the  government  of  the  British  Empire;  but  it  has  left  its 
mark  on  the  judicial  systems,  not  only  of  England  and  Ire- 
land (Scotland  seems  to  have  ignored  it),  but  of  the  colonies 
and  even  of  British  India.  It  may  be  said  that,  while  the 
"  common  law,"  i.e.  the  law  founded  on  immemorial  custom 
supplemented  by  Act  of  Parliament,  was  a  rigid  system,  deal- 
ing out  precise  remedies  as  a  matter  of  right  and  refusing  to 
recognize  any  grievance  which  did  not  fall  within  its  precise 
terms,  "  equity,"  the  system  administered  by  the  Chancellor 
in  the  Court  of  Chancery,  occupied  itself  with  devising  reme- 
dies for  substantial  hardships  unredressed,  or  imperfectly 
redressed,  by  the  common  law,  and  with  mitigating  the  harsh 
application  of  certain  rules  of  the  strict  common  law.  Inas- 
much as  the  jury  system  never  made  its  way  into  the  Court 
of  Chancery,  the  power  of  the  Chancellors  to  mould  the  rules 
of  equity  was  very  great ;  until  the  practice  of  "  reporting," 
or  publishing,  their  decisions  grew  up,  and  created  in  the 
Court  of  Chancery,  as  well  as  in  the  Common  Law  Courts, 
that  deep  respect  for  precedent  which  has  been  both  the 
strength  and  the  weakness  of  English  Law,  and  which  gradu- 
ally made  the  distinction  between  "  common  law "  and 
"  equity  "  cumbersome  and  unworkable. 

The  Office  of  the  Chancery 

Meanwhile,  the  work  of  the  Chancery,  not  as  a  court  of 
justice,  but  as  an  administrative  office,  had  continued  and 
grown ;  though  the  appearance  of  new  departments  of  State, 
such  as  The  Treasury  or  Exchequer  and  the  Secretaryships 
of  State  (Chapter  IX),  tended  to  destroy  its  character  as 
the  sole  business  office  of  the  government  of  the  Kingdom. 
For  example,  every  "  writ,"  or  executive  order  of  the  King, 
whether  for  beginning  a  common  law  action,  or  for  summon- 
ing members  of  Parliament,  required  the  affixing  of  the  great 


222  THE    INDIVIDUAL    OFFICES 

seal;  so  also  did  the  issue  of  Letters  Patent,  or  formal  ex- 
pressions of  the  royal  will  announced  to  all  the  world;  so 
also  did  the  conclusion  of  a  treaty  with  a  foreign  State.  As 
time  went  on,  the  use  of  the  great  seal  became  subject  to 
various  safeguards,  such  as  the  interposition  between  it  and 
the  original  signification  of  the  royal  pleasure  of  additional 
checks,  e.g.  the  signet  and  the  privy  seal,  each  by  a  keeper 
or  custodian  who  was  responsible  for  its  proper  use ;  and  we 
have  seen  (pp.  28,  29)  how  this  elaborate  process  was  regu- 
lated by  statute  in  the  year  1535. 

Judicial  Patronage 

But  it  was,  probably,  his  position  as  the  chief,  if  not  the 
sole,  judge  in  the  Court  of  Chancery,  which  secured  for  the 
Lord  High  Chancellor  his  commanding  position  as  dispenser 
of  judicial  patronage  and  a  leading  member  of  the  Ministry. 
The  growth  of  the  Court  of  Chancery  in  the  eighteenth  cen- 
tury, after  its  narrow  escape  from  destruction  in  the  Civil 
War,  was  enormous ;  it  developed  an  elaborate  machinery  of 
Masters,  Clerks  of  various  ranks,  Registrars,  and  other  offi- 
cials ;  and  all  these  were,  virtually,  subordinates  of  the  Lord 
Chancellor.  In  the  nineteenth  century,  various  Vice-Chan- 
cellors  were  appointed  to  assist  him  in  the  judicial  duties  of 
his  office;  and  though  these,  like  the  other  judges,  held  their 
offices  directly  from  the  Crown,  the  advice  of  the  Chancellor 
was,  naturally,  of  great  weight  in  the  selection  of  them.  And 
when,  by  the  great  judicial  reforms  of  the  years  1873-1876, 
hereafter  to  be  alluded  to  (pp.  263,  264),  the  organization 
both  of  the  "  common  law  "  and  the  "  equity  "  courts  was 
combined,  substantially  the  whole  of  the  patronage  attached 
to  the  superior  courts  passed  into  the  hands  of  the  Lord 
Chancellor,  who  had  previously  been  entrusted,  by  statute, 
with  the  appointment  of  the  County  Court  judges  (p.  261), 
whilst,  by  virtue  of  his  custody  of  the  great  seal,  the  final  rec- 
ommendation for  the  appointments  of  nearly  all  Justices  of 
the  Peace  (p.  249)  throughout  England  is  in  his  hands. 
Thus  the  Lord  Chancellor  is,  in  effect,  though  not  in  name, 


THE    LORD    HIGH    CHANCELLOR  223 

a  Minister  of  Justice,  as  well  as  the  presiding  member  of  the 
highest  courts  of  Appeal. 

Chairman  of  House  of  Lords 

Add  to  these  dignities  his  position  as  Speaker  or  Presi- 
dent of  the  House  of  Lords ;  and  it  will  be  seen  to  what 
dimensions  has  grown  the  once  humble  office  of  the  scribe 
who  sat  behind  the  screen  in  the  King's  chapel  in  the  eleventh 
century.  Finally  it  may  be  remarked,  as  one  of  the  numer- 
ous oddities  of  the  British  Constitution,  that  the  Lord  High 
Chancellor  of  England  is  also  Lord  High  Chancellor  of  Great 
Britain ;  though  the  custody  of  the  Great  Seal  of  Scotland  is 
with  the  recently  created  Secretary  for  Scotland  (p.  47). 
There  is  a  separate  Lord  Chancellor  for  Ireland ;  but  none 
of  the  colonies  nor  British  India  has,  it  is  believed,  any 
official  closely  corresponding  to  the  Lord  High  Chancellor,^ 
though  many  of  the  former  have  Ministers  of  Justice,  and  in 
India  there  is,  as  has  been  said  (p.  79),  a  Legal  Member  of 
the  Viceroy's  Executive  Council. 

Lord  Privy  Seal, 

The  office  of  Lord  Privy  Seal  need  not  detain  us ;  for  its 
duties,  important  as  they  once  were,  have  disappeared;  and 
the  office  itself  serves  only  as  a  convenient  means  of  giving 
rank  to  a  person  whose  presence  in  the  Ministry  "  without 
portfolio  "  (p.  105)  is,  for  any  reason,  desired.  The  King's 
Privy  seal  seems  to  have  been  interposed  between  the  sign- 
manual  warrant  (p.  29)  and  the  great  seal  far  back  in  his- 
tory, as  a  check  upon  improvident  or  fraudulent  issue  of 
funds  out  of  the  Exchequer;  and  its  original  importance  is 
attested  by  the  care  with  which  Parliament,  in  its  earliest 
days,  insisted  that  it  should  be  entrusted  only  to  a  worthy 
person.  It  figures  largely  in  the  Seals  Act  of  1535,  before 
alluded  to ;  but  its  importance  disappeared  with  the  establish- 
ment of  the  Exchequer  and  Audit  Office  (p.  205),  and  the 

1  There  is  a  titular  "Chancellor"  in  the  Province  of  Ontario;  but  he  appears 
not  to  occupy  the  highest  judicial  rank. 


224  THE    INDIVIDUAL    OFFICES 

general  reforms  in  financial  machinery  in  the  early  part  of 
the  nineteenth  century. 

Lord  President  of  the  Council 

Of  a  similar  character  is  the  office  of  Lord  President  of 
the  Council,  who  is  always  a  member  of  the  Ministry,  and 
who  presides  at  the  formal  meetings  of  the  Privy  Council 
when  the  King  is  not  present,  and  takes  precedence  in  that 
body  next  after  His  Majesty.  One  of  the  peculiarities  of 
the  office  is,  that  it  is  filled  by  a  simple  personal  declaration 
made  in  the  Council  by  the  King.  The  Lord  President  would, 
naturally,  take  the  chair  of  any  committee  of  the  Council  of 
which  he  was  a  member ;  and  he  can  answer  questions  in  Par- 
liament as  to  the  action  of  any  such  committee.  But  his  real 
business  is  to  act  as  a  "  Minister  without  portfolio " 
(p.  105). 

The  "  Chancellor  of  the  Duchy  " 

Very  much  on  the  same  footing  stands  the  Chancellor  of 
the  Duchy  of  Lancaster,  the  great  Palatine  fief  (p.  125) 
which,  at  the  accession  of  Henry  IV,  became  united  to  the 
Crown,  but,  for  reasons  of  prudence  which  have  long  ceased 
to  exist,  has  always  been  maintained  as  a  separate  dignity, 
with  its  own  revenues  belonging  to  the  King  "  in  right  of  his 
Duchy,"  and  not  included  in  the  "  Civil  List  "  (p.  205),  its 
own  law  courts,  its  own  officials,  and  its  own  administrative 
offices.  The  Chancellor  of  the  Duchy  exercises  some  little 
patronage,  such  as  the  recommendations  for  the  appoint- 
ments of  Justices  of  the  Peace  for  the  Duchy  of  Lancaster, 
and  the  appointment  of  the  County  Court  judges  (p.  261) 
acting  therein.  But,  again,  the  chief  business  of  the  oflSce 
is  to  supply  a  "  Minister  without  portfolio,"  frequently  on 
his  way  to  higher  oflSce. 

The  Law  Officers 

On  the  other  hand,  the  duties  of  the  Law  Officers  and  the 
Postmaster-General  are  onerous;  and,  though  these  officials 


THE    LAW    OFFICES  225 

are  always  included  in  the  Ministry  of  the  day,  they  are  by 
no  means  always  members  of  the  Cabinet  —  in  fact,  the  in- 
clusion of  the  Attorney-General,  the  senior  Law  Officer,  in 
the  Cabinet  a  few  years  ago,  was  looked  upon  as  an  excep- 
tional, and,  perhaps,  not  wholly  desirable  step.  For  the 
Attorney-General,  in  conjunction  with  his  colleague,  the 
Solicitor-General,  both  of  them  being  barristers  of  great  ex- 
perience, represent  the  Crown  in  all  legal  proceedings  (includ- 
ing, nominally,  the  institution  of  all  criminal  prosecutions, 
and  all  revenue  and  other  prerogative  claims  of  the  Crown), 
as  well  as  in  the  defence  of  the  Crown  in  such  claims  as  can 
be  brought  against  it,  by  petition  of  right  or  otherwise 
(p.  211  n.).  In  this  capacity,  he  acts  in  a  quasi-judicial 
manner,  not  straining  the  Crown's  rights  as  a  private  barris- 
ter might  well  do  those  of  his  client,  but  merely  endeavouring 
to  see  that  even-handed  justice  is  done.  Particularly  anxious 
and  responsible  is  his  duty  in  those  important  criminal  and 
political  trials  in  which  he  appears  in  person;  though  his 
duties  in  such  cases  have  been  lightened  by  the  recent  creation 
of  a  Director  of  Public  Prosecutions,  a  non-party  and  "  per- 
manent "  official,  who  prepares  the  cases  for  trial.  The  Law 
Officers  act  in  a  still  more  judicial  capacity  on  appeals  from 
the  Comptroller  of  Patents,  when  there  is  a  dispute  as  to  the 
lawfulness  of  granting  a  particular  "  patent  "  or  monopoly. 
Their  more  political  duties  consist  in  ad\'ising  the  various 
departments  of  State  on  legal  matters,  though  these  have 
now  often  their  own  official  "  legal  advisers,"  and  in  defend- 
ing the  legality  of  Government  measures,  and  explaining  legal 
technicalities,  in  the  House  of  Commons.  They  also  exercise 
a  limited  amount  of  minor  official  patronage.  By  a  whole- 
some rule  of  recent  adoption,  they  are  not  allowed  to  supple- 
ment their  handsome  official  incomes  by  taking  briefs  for 
private  clients. 

The  Postmastee-Geneeal 

The  Postmaster-General,  as  his  title  implies,  is  concerned 
with  the  management  of  the  vast  business  of  the  Post  Office, 


226  THE    INDIVIDUAL    OFFICES 

which  includes,  now,  not  merely  its  original  duty  of  carrying 
and  delivering  letters,  but  those  of  transmitting  telegrams, 
both  by  land  and  sea,  receiving  and  safeguarding  the  savings 
of  people  of  moderate  means,  facilitating  the  transfer  of 
money  in  small  amounts,  carrying  and  delivery  of  parcels, 
payment  of  "  Old  Age  Pensions  "  (p.  231)  and  other  Govern- 
ment allowances,  and  the  instalment  and  upkeep  of  tele- 
phones. The  Government  monopoly  of  carrying  letters 
dates  from  the  seventeenth  century;  but  the  other  duties  of 
the  Post  Office  were  imposed  at  various  times  during  the  nine- 
teenth and  present  centuries.  It  may  well  be  questioned, 
whether  such  a  purely  "  business  "  affair  as  the  Post  Office 
ought  to  be  made  a  political  department ;  but  two  facts  seem 
to  justify  the  practice.  One  is,  that  a  substantial  part  of 
the  national  revenue  is  received  from  the  Post  Office;  and 
it  is,  therefore,  desirable  that  the  House  of  Commons  should 
be  able  to  exercise  direct  control  over  it.  The  other  is,  that 
persistent  questions  in  Parliament  are  one  of  the  best  means 
of  bringing  about  reforms  in  a  department  which,  by  the 
very  nature  of  its  business,  tends  towards  routine. 

Household  Offices 

A  still  briefer  notice  will  suffice  of  the  Household,  or  purely 
ceremonial  offices  of  the  King's  Court.  Some  of  these,  such 
as  the  Earl  Marshal  and  the  Lord  High  Chamberlain,^  date 
back  to  remote  antiquity ;  and,  as  has  been  before  pointed 
out  (p.  220),  they  long  ago  became  hereditary,  and,  there- 
fore, purely  ceremonial.  They  are  exercised  chiefly  on  such 
solemn  occasions  as  a  coronation  or  a  royal  funeral.  They 
have,  of  course,  no  connection  with  politics.  They  have, 
however,  been  supplemented  by  slightly  more  practical  offices, 
such  as  those  of  the  Lord  Chamberlain  and  Lord  Steward  of 
the  Household,  who  are  members  of  the  Ministry  in  perma- 
nent attendance  on  the  King,  who  make  up  a  "  quorum  "  or 
necessary  number,  at  the  formal  meetings  of  the  Privy  Coun- 

*  The  ancient  oflBce  of  Lord  High  Constable  is  in  abeyance.  It  may,  of 
course,  be  revived  by  the  Crown. 


THE    BOARD    OF    TRADE  227 

cil  (p.  103),  and  who  appear  also  at  Court  ceremonios,  and 
are  supposed  to  keep  the  King  in  touch  with  the  working 
members  of  the  Ministry.  The  Lord  High  Steward,  on  the 
other  hand,  though  not  a  purely  ceremonial  officer,  is  not  a 
Minister ;  being  only  appointed,  as  occasion  may  require,  to 
preside  at  the  trial  of  a  peer  by  his  peers  for  treason  or 
felony  (p.  163),  when  Parliament  is  not  sitting. 

Administrative  Offices 

We  now  pass  to  the  more  practically  important  subject 
of  the  modern  departments  of  State,  called,  by  a  well-known 
writer,^  "  regulative  "  offices,  to  distinguish  them  from  the 
"  executive  "  departments  essential  to  the  maintenance  of 
State  existence.  Perhaps  the  distinction  is  a  little  arbi- 
trary ;  and  we  may  suggest  that  the  title  "  administrative  " 
is  equally  appropriate  to  these  modern  departments,  whose 
duties  are  especially  concerned  with  the  development  of  the 
resources,  mental  and  physical,  of  the  nation. 

The  Board  of  Trade 

The  oldest,  and,  in  some  ways,  the  most  important  of 
these  is  the  Board  of  Trade,  which,  as  has  been  before  pointed 
out  (p.  69),  was  one  of  the  many  far-sighted  schemes  of  the 
Commonwealth  government  which  followed  on  the  Civil  War. 
It  suffered  many  vicissitudes  in  its  early  years,  being  mixed 
up  with  the  fortunes  of  the  colonies,  or  "  plantations  " ;  but 
in  1782  it  was  constituted  an  independent  committee  of  the 
Privy  Council,  and  definitely  regulated  by  Order  in  Council 
in  1786.  This  Order  is  important,  because  it  set  the  prece- 
dent of  creating  a  President  and  Vice-President  of  the  Com- 
mittee, who  were  really  expected  to  perform  the  duties  of  a 
miscellaneous  body  whose  other  members  soon  became  merely 
formal.  This  practice  survived  the  conversion  of  the  com- 
mittee into  a  statutory  "  Board  "  in  the  year  1862 ;  though 
the  solemn  farce  of  appointing  important  personages,  such 

^  Sir  William  Anson,  in  his  "Law  and  Custom  of  the  Constitution,"  Vol.  11, 
p.  142. 


228  THE    NEWER    DEPARTMENTS 

as  the  Archbishop  of  Canterbury  and  the  Secretaries  of  State, 
as  members  of  the  Board,  was  continued.  In  the  year  1867, 
the  exclusive  control  of  the  President,  who  had  by  that  time 
become  an  important  member  of  the  Ministry,  and,  frequently, 
of  the  Cabinet,  was  emphasized  by  the  abolition  of  the  Vice- 
Presidency,  and  the  substitution  for  it  of  a  Parliamentary 
Secretary,  who  is  clearly  a  subordinate,  as  he  is  not  even  a 
member  of  the  Board.  The  Board  has  also,  now,  a  very 
numerous  staff,  not  only  of  clerical  but  of  expert  officials, 
grouped  according  to  the  various  duties  entrusted  to  it. 

For,  from  the  middle  of  the  nineteenth  century,  up  to 
which  time  the  duties  of  the  Board  had  been  mainly  confined 
to  the  collection  of  trade  statistics  and  the  giving  of  advice 
on  trade  subjects  to  other  departments,  the  Board  of  Trade 
began  more  and  more  to  assume  an  active  or  administrative 
character,  being  charged  with  the  care  of  one  after  another 
of  the  national  industries,  as  well  as  of  those  general  instru- 
ments and  facilities  without  which  no  industry  can  flourish 
on  a  great  scale. 

Railways 

Thus,  for  example,  the  Board  is  concerned  with  proposals 
for  the  extension  of  railways.  No  new  line  may  be  opened 
until  it  has  been  inspected  and  proved  by  the  Board's  officials. 
The  Board  issues  regulations  intended  to  provide  for  the 
safety  of  passengers  and  railwaymen,  and  holds  enquiries  as 
to  the  causes  of  accidents. 

Shipping 

The  Board  has  many  important  duties  in  connection  with 
the  interests  of  merchant  shipping.  It  maintains  a  register 
containing  the  particulars  of  every  British  ship ;  and  no 
transfer  of  any  share  in  such  a  ship  is  legally  valid  until 
entered  on  this  register.  The  Board  likewise  makes  regula- 
tions for  the  safety  of  merchant  ships,  both  as  to  their  build 
and  loading,  and  sees  that  they  are  carried  out.  It  has  con- 
trol of  harbours,  and,  indirectly,  through  the  ancient  and  in- 


THE    BOARD    OF    TRADE  229 

teresting  gild  of  the  Trinity  House,  and  the  Commissioners 
of  Northern  and  Irish  Lighthouses,  of  the  provision  and 
maintenance  of  lighthouses,  beacons,  and  other  means  for 
ensuring  safety  at  sea.  It  is  in  this  capacity  that  it  has 
exercised  powers  in  connection  with  emigration;  though  the 
encouragement  of  assisted  emigration  is  left  to  the  Local 
Government  Board,  while  information  on  the  subject  of  open- 
ings for  emigrants  is  published  by  the  Colonial  Office,  in  con- 
junction with  the  High  Commissioners  and  Agents-General 
of  the  Dominions. 

Public  Utilities 

The  Board  of  Trade  has  also  a  good  deal  to  do  with  the 
supervision  of  what  may  be  called  "  public  utilities,"  such  as 
electricity,  gas,  and  water  supply.  It  supei'vises  the  work- 
ing of  the  Patent  Office,  from  which  carefully  limited  grants 
of  monopolies  for  the  manufacture  and  sale  of  *'  inventions 
new  within  the  realm  "  are  issued  "  to  the  true  and  first  in- 
ventors thereof."  It  has  a  good  deal  to  do  with  the  Register 
of  Joint  Stock  Companies,  containing  particulars  of  those 
artificial  but  useful  bodies  by  which  so  much  of  modern  com- 
merce is  carried  on.  It  maintains,  through  local  agencies, 
the  proper  standards  of  weights  and  measures.  It  establishes 
and  maintains  Labour  Exchanges  for  the  rapid  and  con- 
venient distribution  of  workmen.  It  has  much  to  do  with  the 
working  of  the  Bankruptcy  laws,  whereby  the  property  of 
insolvent  persons  is  made  available  for  proportionate  distri- 
bution among  their  creditors.  Finally,  by  a  most  important 
and  hopeful  modem  development,  it  is  charged  with  the 
carrying  out  of  legislation  intended  to  secure  conciliation 
and  ultimate  settlement  of  industrial  disputes. 

The  Board  of  Works 

A  small  but  interesting  department  is  that  of  the  Board 
of  Works,  separated  in  1851  from  the  Commissioners  of 
Woods  and  Forests  (p.  200),  and,  nominally,  like  the  Board 
of  Trade,  a  body  of  several  members,  but  really  a  "  one-man  " 


230  THE    NEWER    DEPARTMENTS 

department  under  the  First  Commissioner,  who  is  a  member 
of  the  Ministry,  departmentally  charged  with  looking  after 
State  buildings,  palaces,  and  parks. 

The  Local,  Government  Board 

Far  wider  are  the  duties  of  the  Local  Government  Board. 
Though  nominally  the  creation  of  Act  of  Parliament  in  1870, 
and,  in  reality,  a  "  one-man  "  department  under  a  President, 
who  is  a  member  of  the  Ministry,  and,  with  the  assistance 
of  a  Parliamentary  and  other  secretaries  and  numerous 
officials,  conducts  the  business  of  the  Board,  the  department 
is  really  an  amalgamation  of  three  much  older  institutions, 
viz.  the  Poor  Law  Commissioners  or  Board,  the  Board  of 
Public  Health,  and  the  Local  Government  sub-department  of 
the  Home  Office.  This  origin  will  give  us  the  key  to  the 
distribution  of  its  duties. 

Poor  Law 

Of  the  great  subject  of  poor  relief,  which  dates,  as  a  public 
liability,  from  the  sixteenth  century,  something  must  be  said 
when  we  come  to  deal  with  local  government  in  England 
(p.  313),  of  which  it  is,  historically,  the  basis,  and  of  which 
it  still  forms  a  substantial  part.  It  is  sufficient  to  say  here, 
that,  while  the  actual  distribution  and  provision  for  the  relief 
of  destitution,  apart  from  the  provisions  of  the  National  In- 
surance Act  (pp.  207,  208),  is  left  to  elected  Boards  of 
Guardians  and  their  officials  (p.  308),  it  has  been  found  by 
experience  necessary  that  these  authorities  shall  be  constantly 
advised,  watched,  and,  to  a  certain  extent,  controlled,  by  a 
central  department,  charged  with  preventing  neglect  of  duty 
on  the  one  hand,  and  injudicious  extravagance  on  the  other. 
Accordingly,  the  Poor  Law  sub-department  of  the  Local 
Government  Board  issues,  under  the  seal  of  the  Board, 
Orders  regulating,  within  legal  limits,  the  conduct  of  poor 
relief,  sends  its  inspectors  to  examine  "workhouses,"  asylums, 
and  other  Poor  Law  institutions,  and  its  auditors  to  examine 
the  accounts  of  the  Boards  of  Guardians  and  their  officials. 


PENSIONS  —  PUBLIC    HEALTH  231 

It  also  exercises  a  wholesome  check  on  the  appointment  of 
these  officials,  and  protects  them  against  arbitrary  dismissal 
by  their  immediate  employers.  This  last  protection  is  vitally 
necessary,  to  secure  the  faithful  and  independent  discharge 
of  their  duties  by  the  officials  of  the  local  authorities. 

Old  Age  Pensions 

As  was  said  of  National  Insurance,  so  it  may  be  said  of  the 
scheme  of  Old  Age  Pensions  which  has  now  been  in  force  in 
the  United  Kingdom  for  the  last  eight  years,  that  it  is  no 
part  of  the  government  of  the  British  Empire.  But  it  cer- 
tainly has  its  imperial  side ;  for  if  the  proposal  and  thinking 
out  of  the  scheme  were  due  to  the  energy  and  perseverance  of 
English  economists,  the  earliest  experiments  on  the  lines  ulti- 
mately adopted  were  made  in  the  Dominions  under  the  South- 
ern Cross,  and  the  Dominion  of  New  Zealand  claims  the  credit 
of  being  the  first  member  of  the  Empire  to  put  it  into  practi- 
cal force,  in  the  year  1898.  It  may  therefore  just  be  stated 
that,  by  virtue  of  the  Old  Age  Pensions  Act  of  1908  and  its 
amendments,  every  British  subject  resident,  for  twelve  years 
out  of  the  last  twenty,  within  the  United  Kingdom,  who  can 
prove  that,  by  no  default  of  his  own,  his  income  does  not  ex- 
ceed twelve  shillings  a  week,  is  entitled  to  a  pension,  payable 
out  of  moneys  provided  by  Parliament,  of  one  to  five  shillings 
a  week  (increased  during  war  time)  according  to  his  means, 
until  his  or  her  death.  These  pensions  are  actually  paid 
through  the  Post  Office ;  and  the  claims  of  the  applicants  are 
tested  by  local  committees.  But  the  composition  of  these 
committees  must  be  approved  by  the  Local  Government 
Board,  which  hears  appeals  from  their  decisions,  and  makes 
Regulations  governing  their  proceedings. 

Public  Health 

Another  great  branch  of  the  work  of  the  Board  is  the 
supervision  of  the  working  of  the  sanitary  laws  which,  since 
the  passing  of  the  great  Public  Health  Act  of  1848,  have 
developed  at  a  rapid  rate.     The  great  amending  and  codify- 


232  THE    NEWER    DEPARTMENTS 

ing  Act  of  1875,  the  basis  of  the  present  law,  is  a  volume  of 
minute  regulations ;  and  it  has  itself  been  frequently  amended. 
A  glance  at  that  statute  will  show  that,  as  in  tlie  case  of  the 
Poor  Law,  it  is  intended  to  be  mainly  administered  by  local 
authorities,  now  known  as  "  district  councils,"  or  by  still 
more  highly  developed  borough  councils,  of  which  something 
must  be  said  in  later  chapters  (XIII,  XIV).  But  the  gen- 
eral enforcement  of  the  scheme,  the  demarcation  of  the  dis- 
tricts, the  settlement  of  disputes  between  rival  authorities, 
the  bringing  of  pressure  to  bear  on  slack  or  recalcitrant 
councils,  the  approval  of  the  qualifications  of  local  sanitary 
officials,  and,  above  all,  the  sanctioning  of  the  important 
schemes  for  the  clearing  of  unhealthy  areas,  and  the  provision 
of  dwellings  suitable  for  the  working  classes,  fall  to  the  lot 
of  the  Local  Government  Board,  which  also  exercises  direct 
powers  of  inspection  in  such  important  matters  as  the  escape 
of  dangerous  fumes  from  alkali  works,  the  conditions  of  canal 
boats,  and  the  enforcement  of  miles  of  segregation  in  the  case 
of  infectious  diseases,  and  of  the  provisions  of  the  Vaccina- 
tion Acts. 

Local  Government  Generally 

Finally,  in  its  capacity  of  general  supervisor  of  local  gov- 
ernment, which  it  has  inherited  from  the  Home  Office,  the 
Local  Government  Board  is  concerned  with  the  delimitation 
of  the  boundaries  of  all  local  authorities,  the  sanctioning  of 
loans  for  various  local  undertakings,  the  conferring  upon 
rural  areas  of  powers  usually  exerciseable  only  by  urban  au- 
thorities, the  audit  of  the  accounts  of  local  government  bodies, 
and  the  approval  of  by-laws,  or  local  statutes,  issued  by  such 
bodies  under  their  various  powers.  Only,  by  a  curious  sur- 
vival, the  by-laws  of  a  municipal  borough  (p.  334)  require 
the  approval  of  the  Home  Secretary  (p.  210),  not  of  the 
Local  Government  Board,  which  does,  however,  pass  the 
borough  accounts,  after  they  have  been  audited  by  the  local 
borough  auditors. 


THE    BOARD    OF    AGRICULTURE  233 

The  Board  of  Agriculture  and  Fisheries 

The  Board  of  Agriculture  was  formed  by  statute  in  1889, 
to  take  over  the  miscellaneous  duties  of  the  Privy  Council  on 
the  subject  of  noxious  insects  and  the  contagious  diseases  of 
animals,  as  well  as  the  duties  of  the  Land  Commissioners,  a 
sub-department  which  had  itself  absorbed  the  duties  of  no 
less  than  five  older  bodies,  viz,  the  Copyhold  Commissioners, 
the  Tithe  Commissioners,  the  Drainage  Commissioners,  the 
University  and  College  Estates  Commissioners,  and  the  In- 
closure  Commissioners. 

Copyhold  Commission 

The  Copyhold  Commissioners  were  formed  to  approve  of 
and  carry  out  local  or  individual  schemes  for  the  conversion 
of  that  peculiar  form  of  land  tenure  known  as  "  copyhold," 
into  the  simpler  and  more  adaptable  tenure  of  "  socage  "  or 
freehold;  the  former  being  regulated  by  unalterable  local 
customs,  often  very  onerous  in  their  character,  while  the 
latter  is  governed  by  the  simpler  and  uniform  rules  of  the 
common  law. 

Tithe  Commission 

The  Tithe  Commissioners  were  originally  appointed  to 
supervise  the  conversion  of  the  old  inconvenient  liability  to 
the  payment  of  tithes,  or  Church  dues,  in  kind,  into  a  fixed 
annual  "  rent  charge,"  or  payment  charged  on  land,  varying 
only  with  the  price  of  corn.  Their  duties  are  now  almost 
completed. 

Drainage  Commissioners 

The  Drainage  Commissioners  were  appointed  to  approve 
of  schemes  for  undertaking  the  drainage  and  other  perma- 
nent improvement  of  land,  by  life  or  other  limited  owners, 
who  desired  to  charge  the  capital  of  their  lands  with  the  cost 
of  the  schemes. 


234  THE    NEWER    DEPARTMENTS 

University  Estates  Commissioners 

The  University  and  College  Estates  Commissioners  were 
appointed  to  approve  the  sale  of,  or  other  dealings  with, 
land  belonging  to  universities  and  colleges,  the  alienation 
of  which  is  subject  to  stringent  restrictions. 

Inclosure  Commission 

The  Inclosure  Commissioners  were  created  at  a  time  when 
it  was  considered  desirable  to  inclose  and  divide  up  into  pri- 
vate hands  the  waste  lands  belonging  to  manors,  which  were 
the  subject  of  common  enjoyment  and  user;  but  a  strong 
revulsion  of  popular  feeling  on  the  subject  has  produced 
legislation  which  has  practically  extinguished  the  powers, 
formerly  conferred  on  the  Commissioners,  of  facilitating  in- 
closure schemes. 

To  these  original  duties  of  the  Board  of  Agriculture  were 
added,  in  the  year  1903,  the  duties  previously  exercised  by 
the  Board  of  Trade  in  the  matter  of  the  control  and  devel- 
opment of  sea  and  river  fisheries ;  and  the  Board  then  be- 
came the  Board  of  Agriculture  and  Fisheries.  The  energy 
of  its  successive  Presidents  and  officials  has  since  made  of  it 
a  general  stimulator  and  guardian  of  agricultural  interests ; 
and  its  activities  in  that  direction  during  the  strain  of  the 
great  war  have  been  conspicuous.  The  numerous  Orders 
which  it  issues  are  familiar  objects  of  the  country-side;  their 
scope  ranges  from  swine  and  cattle  disease  to  the  adulteration 
of  seeds  and  fertilizers.  Like  the  Board  of  Trade  and  the 
Local  Government  Board,  it  is  a  "  one-man  "  body,  which, 
though  nominally  comprising  a  number  of  great  officials,  is 
in  fact  administered  by  a  President,  who  is  a  member  of  the 
Ministry,  and  who  has  the  assistance  of  a  Parliamentary 
and  permanent  secretaries,  and  a  number  of  expert  and  cleri- 
cal officials.  Amongst  its  other  interesting  duties,  it  has  now 
charge  of  the  Ordnance  Survey,  or  systematic  mapping  of 
the  land  of  the  Kingdom, 


PUBLIC    EDUCATION  235 

The  Board  of  Education 

In  spite  of  its  intrinsic  importance,  the  Board  of  Educa- 
tion can  hardly  be  said  to  be  at  present  of  an  imperial  charac- 
ter; for  the  self-governing  Dominions  at  least,  had  put  into 
force  admirable  systems  of  State  elementary  education  long 
before  England  (though  the  case  of  Scotland  was  far  bet- 
ter) had  made  anything  like  a  systematic  provision  for  the 
education  of  the  children  of  the  nation.  Much  had  been  done 
by  the  piety  of  former  ages  to  found  grammar  schools ;  but 
many  of  these  had  been  allowed  to  fall  into  decay,  while 
others,  more  Avealthy  or  better  looked  after,  such  as  Eton, 
Harrow,  Winchester,  and  Rugby,  had  become  appropriated 
to  tlie  use  of  the  wealthier  classes,  and  assumed  for  them- 
selves, without  complete  justification,  the  exclusive  title  of 
"  Public  Schools."  The  two  ancient  universities  of  Oxford 
and  Cambridge  were  independent  and  self-governing  bodies, 
whose  great  wealth  was  locked  up  in  a  curious  collegiate 
system,  which,  though  it  was  to  prove  capable  of  great  value 
when  properly  stimulated,  by  the  end  of  the  eighteenth  cen- 
tury had  fallen  into  a  state  of  decay  and  misappropriation ; 
thus  rendering  the  ancient  universities,  like  the  great  "  Pub- 
lic Schools,"  practically  the  preserve  of  the  rich,  though  a 
certain  number  of  "  sizarships  "  and  close  scholarships  en- 
abled poor  students  of  resolution  or  toughness  of  sensibility 
to  obtain  the  benefits  (such  as  they  then  were)  of  a  univer- 
sity education.  Technical  education,  which,  in  earlier  times, 
had  been  cared  for  by  a  system  of  apprenticeship,  regulated 
by  statute,  and  by  a  network  of  gilds,  or  industrial  associa- 
tions, which,  despite  the  plundering  which  they  underwent 
at  the  Reformation,  still  retained  a  good  deal  of  wealth,  had 
fallen  almost  entirely  into  decay.  Such  provision  as  there 
was  for  the  education  of  the  masses,  was  maintained  mainly 
by  the  efforts  of  the  parochial  clergy  of  the  Established 
Church,  by  private  charity,  and  by  private  enterprise  of  a 
very  unskilled  kind. 


236  THE    NEWER    DEPARTMENTS 

Reform  of  the  Universities 

Much  was  done  during  the  nineteenth  century,  to  remedy 
this  disgraceful  state  of  affairs.  The  older  universities  were 
reformed  by  Acts  of  Parliament,  based  on  the  Reports  of 
Royal  Commissions,  and  have  undergone  a  revival,  great  and 
even  startling,  in  view  of  their  conditions  a  hundred  years 
ago.  New  universities,  at  London,  Durham,  Manchester, 
Liverpool,  Leeds,  Sheffield,  Bristol,  and  in  Wales,  have  been 
founded,  and  liberally  endowed  both  by  private  generosity 
and  State  subvention.  The  newer  universities  make  substan- 
tial provision  for  the  higher  branches  of  technical  educa- 
tion; but  other  institutions,  some  established  by  means  of 
the  wealth  of  the  ancient  gilds,  others  provided  by  local  au- 
thorities chiefly  by  means  of  grants  from  the  Imperial  Ex- 
chequer, a  few  directly  created  and  managed  by  the  State, 
have  been  founded  for  this  special  purpose. 

The  Endowed  Schools  Commission 

The  Endowed  Schools  Commission  has  remedied  many  of 
the  worst  abuses  of  the  nine  great  Public  Schools,  and  has 
approved  and  put  into  force  schemes  for  reviving  and  ex- 
tending the  smaller  ancient  grammar  schools,  which  had 
been  allowed  to  fall  into  decay.  New  schools  for  the  sons 
and  daughters  of  the  professional  classes,  such  as  Hailey- 
bury,  Cheltenham,  Clifton,  and  Marlborough,  have  been 
founded  from  various  sources.  But  the  most  important  of 
all  the  changes  which  have  taken  place,  from  the  national 
point  of  view  and  that  of  the  prospects  of  the  Empire,  is  the 
gradual  establishment  of  State  responsibility  for,  and  con- 
trol over,  elementary,  and,  to  a  certain  extent,  secondary 
education  generally. 

Elementary  Education  and  Voluntary  Societies 

The  movement  has  proceeded  with  characteristic  English 
caution.  It  began  with  the  foundation  of  two  voluntary 
societies ;  one  concerned  with  starting  and  improving  Church 


ELEMENTARY    EDUCATION  237 

of  England  schools,  the  other,  though  by  no  means  anti- 
religious,  endeavouring  to  make  education  an  independent 
pursuit,  not  merely  an  appendage  of  religious  teaching.  Un- 
fortunately, the  existence  of  these  different,  and,  in  a  sense, 
rival  (not  to  say  irreconcilable)  attitudes,  has  proved  a  ter- 
rible stumbling-block  in  the  way  of  educational  progress ; 
and  a  reconciliation  between  them  has  not  yet  been  completely 
effected.  Nevertheless,  the  State  has  proceeded  cautiously, 
in  its  character  of  impartial  responsibility  for  the  welfare  of 
all  its  subjects,  to  assist  so  far  as  possible  all  sound  inde- 
pendent enterprise;  while  reserving  to  itself  the  right  to 
step  in  and  supplement  deficiencies  by  a  system  of  its  own. 

Grants  Administered  by  the  Privy  Council 

At  first  it  confined  itself  entirely  to  the  former  role.  From 
the  early  years  of  the  nineteenth  century,  The  Treasury 
began  to  make  grants  in  aid  of  elementary  schools.  The 
grants  were,  at  first,  small  and  irregular;  and  were  distrib- 
uted somewhat  at  haphazard.  In  the  year  1839,  a  Com- 
mittee of  the  Privy  Council  was  created  for  the  purpose  of 
supervising  the  distribution  of  them.  This  step  naturally 
led  to  a  system  of  inspection  and  audit  of  accounts  of  the 
schools  aided  by  the  grants ;  and  thus  the  nucleus  of  an 
Education  Office  was  created. 

Education  Department 

In  the  year  1856,  this  was  formed  into  an  Education  De- 
partment, under  the  headship  of  a  Vice-President  of  the 
Council,  who  acted,  virtually,  as  Minister  of  Education; 
and,  fourteen  years  later,  the  country  formally  resolved,  by 
Act  of  Parliament,  to  undertake  to  enforce  elementary  edu- 
cation throughout  the  land. 

Act  of  1870 

StiU,  the  Education  Act  of  1870  did  not  attempt  to  set 
up  a  universal  system  of  State  schools,  much  less  of  schools 
worked  from  a  central  office.     It  merely  laid  down  the  gen- 


238  THE    NEWER    DEPARTMENTS 

eral  rules:  (1)  that,  the  parents  or  guardians  of  every  child 
must  be  prepared  to  show  that  it  was  receiving  elementary- 
education  up  to  at  least  a  modest  standard,  and  (2)  that, 
where  it  was  clear  that  in  any  locality  there  existed  a  lack 
of  such  education,  it  must  be  provided  by  the  locality,  either 
by  the  levy  of  attendance  fees  on  the  parents  of  the  schol- 
ars, or  out  of  rates  levied  by  the  rating  authorities,  supple- 
mented by  Government  grants  based  on  the  efficiency  of  the 
schools. 

School  Boards 

Under  the  system  thus  established,  the  country  was 
mapped  out  into  school  districts,  under  Boards  directly 
elected  by  the  rate-payers  (whence  the  name  "Board 
Schools  ")  ;  and  these  Boards  set  to  work  to  provide  ele- 
mentary schools  which,  working  alongside  the  older  or  "  vol- 
untary "  schools,  and,  often,  it  is  to  be  feared,  in  not  very 
friendly  rivalry  with  them,  did,  undoubtedly,  do  an  enor- 
mous amount  to  make  up  leeway  in  elementary  education. 
As  the  proportionate  amount  of  the  Parliamentary  grants 
increased,  and  the  contributions  of  the  parents  diminished 
until  they  were  finally  abolished  in  1891,  the  Education  De- 
partment, by  means  of  its  inspectors  and  regulations,  ob- 
tained more  and  more  control  over  the  Board  Schools,  which 
became  increasingly  efficient.  Moreover,  they  produced,  in 
spite  of  somewhat  adverse  conditions,  an  admirable  type  of 
teacher,  male  and  female,  to  whose  devoted  services  the  coun- 
try has  never  really  done  justice.  These  teachers,  working 
in  harmony  with  small  local  committees  of  Managers,  ap- 
pointed by  the  School  Boards  to  maintain  constant  touch  be- 
tween them  and  the  schools,  made  of  the  latter  centres  of 
brightness  and  friendly  social  intercourse,  often  in  the  midst 
of  very  dark  and  depressing  conditions;  and  any  unpreju- 
diced observer  who  had  taken  the  trouble  to  make  a  tour 
of  the  Board  Schools  in  any  big  industrial  town,  or  even  in 
East  London,  after  the  scheme  of  1870  had  got  into  full 
swing,  would  have  realized  that  the  old  tradition  of  a  school 


BOARD    SCHOOLS  239 

as  a  place  of  torture  or,  at  best,  a  place  of  dull  routine,  had, 
so  far  at  least  as  the  children  of  labour  were  concerned,  passed 
away.  Such  opposition  to  attendance  at  elementary  schools 
as  existed  almost  invariably  came,  not  from  the  children 
themselves,  but  from  indifferent  or  selfish  parents,  who  were 
either  too  lazy  to  prepare  the  children  for  school,  or  desired 
to  employ  their  services  to  supplement  the  family  income. 

Defects  of  the  System 

Nevertheless,  the  Board  School  system  had  its  defects ; 
two  of  the  most  conspicuous  of  which  were  the  smallness  of 
the  school  districts,  and  the  methods  of  finance.  Broadly 
speaking,  the  unit  of  school  government  was  the  parish; 
though,  where  the  parish  was  in  a  municipal  borough,  it 
ranked  with  the  other  parishes  of  the  borough  as  a  single 
unit.  In  spite  of  this  provision,  there  were  in  England  up- 
wards of  3,000  school  districts,  many  of  which  were  far  too 
small  to  be  efficient.  Then  too,  as  it  was  impossible  to  allow 
all  these  small  Boards  to  levy  rates  on  their  own  authority, 
they  were  required  to  send  "  precepts,"  or  demands,  to  the 
ordinary  rating  authorities  of  their  districts,  to  supply 
their  needs ;  and,  as  there  was  no  statutory  limit  to  the 
amount  of  these  demands,  and  no  real  compulsion  on  the 
school  authorities  to  give  any  explanation  as  to  their  neces- 
sity, the  rating  authorities,  who  were  the  ordinary  local 
government  authorities  for  the  district,  treated  it  as  their 
duty  to  cut  down  the  demands  of  the  School  Boards  by  all 
means  in  their  power,  regardless  of  the  efficiency  of  the 
schools,  in  which  they  took  little  interest.  Even  where  the 
local  government  area  and  the  school  districts  were  identi- 
cal, as  in  the  case  of  a  borough,  there  were  two  distinct  au- 
thorities, elected  in  different  ways,  who  regarded  one  an- 
other with  jealousy,  if  not  with  suspicion.  These  defects 
were,  obviously,  of  a  purely  political,  or  administrative  char- 
acter: The  old  Board  School  system  was  guilty  of  the  vital 
error  of  divorcing  responsibility  from  power. 


240  THE    NEWER    DEPARTMENTS 

The  Board  of  Education 

This  error  was  largely  due  to  the  fact  that  the  central 
organization,  the  old  Education  Department,  had  not  the 
prestige  or  the  authority  sufficient  to  enable  it  to  meet  on 
equal  terms  of  direct  intercourse  the  great  local  government 
bodies,  the  borough  and  county  councils  (Chapter  XIV); 
still  less  to  handle  firmly  the  old  and  deep-seated  rivalry  be- 
tween the  "  voluntary  "  or  clerical,  and  the  "  Board  "  or 
secular,  schools.  But  this  weakness  was  removed  in  the 
3^ear  1899,  when  the  Education  Department  was  raised  to 
the  status  of  a  political  Board,  nominally  composed,  like  the 
Board  of  Trade  and  the  Local  Government  Board,  of  a  num- 
ber of  great  State  officials,  but  really  under  the  control  of 
a  President,  who  is  a  member  of  the  Ministry,  and  is  as- 
sisted by  Parliamentary  and  permanent  secretaries,  and  a 
professional  and  clerical  staff. 

Act  or  1902 

Thus  fortified,  the  advocates  of  improved  elementary  edu- 
cation took  a  bold  plunge,  and,  in  the  year  1902,  succeeded 
in  carrying  through  Parliament  the  great  Education  Act 
of  that  year,  which  is  the  basis  of  the  present  system  of 
public  elementary  education.  It  was  felt,  on  the  one  hand, 
to  be  a  public  danger  that  the  voluntary  schools,  though  lib- 
erally supported  by  private  efforts,  should  continue  in  a 
state  of  inferior  efficiency  owing  to  lack  of  funds ;  while,  on 
the  other,  the  supporters  of  voluntary  education  steadfastly 
refused,  either  to  allow  their  organization  to  be  extinguished, 
or  to  submit  to  the  control  of  local  secular  authorities  as 
the  price  of  maintenance  out  of  the  rates.  They  already 
received  large  grants  from  Parliamentary  funds ;  but  these 
were,  of  course,  administered  by  the  Board  of  Education, 
not  by  the  local  authorities,  and,  moreover,  did  not  in- 
volve interference,  save  on  small  and  clearly  defined  points, 
with  the  independent  action  of  the  voluntary  associations. 


REFORMS    OF    1902  241 


Present  Scheme 


The  Act  of  1902  boldly  grappled  with  the  problems  be- 
fore it,  by  transferring  the  whole  responsibility  for  elemen- 
tary education  to  the  ordinary  local  government  authorities, 
viz.  the  county,  borough,  and  larger  urban  district  councils, 
to  be  described  in  subsequent  chapters  (XIII  and  XIV), 
and  requiring  them  to  raise  funds  by  local  rates  to  supple- 
ment any  deficiency  in  the  supply  of  such  education,  after 
the  exhaustion  of  other  sources.  Thus,  at  a  stroke,  the 
vicious  principle,  before  alluded  to,  of  separation  between 
power  and  responsibility,  was  abolished ;  while  the  multiplic- 
ity of  administrative  bodies,  and  the  consequent  smallness 
of  many  of  them,  which  had  marked  the  older  system,  dis- 
appeared. But  the  independence  which  was  the  precious  pos- 
session of  the  old  voluntary  (now  the  "non-provided") 
schools,  was  preserved  by  an  ingenious  arrangement  which 
is  of  the  essence  of  the  new  system. 

Education  Committees 

Every  local  authority  responsible  for  elementary  educa- 
tion inust  now  appoint  an  Education  Committee  or  Com- 
mittees in  manner  approved  by  the  Board  of  Education ; 
and  such  Committees,  though  they  must  usually  contain  a 
majority  of  members  chosen  from  the  local  authority  itself 
{i.e.  the  county,  borough,  or  urban  council),  must  also  con- 
tain outside  persons  having  educational  experience,  women 
as  well  as  men,  of  whom  some  may  even  be  nominated  by  in- 
dependent bodies,  such  as  universities  and  associations  of 
"  non-provided  "  schools.  To  these  Committees  stands  re- 
ferred, as  of  course,  every  educational  matter  which  comes 
before  the  local  authority,  except  purely  financial  matters ; 
and  the  local  authority  cannot  come  to  any  decision  on  educa- 
tional matters  without  a  report  from  its  Education  Commit- 
tee.   Thus  the  principle  of  expert  handling  is  guaranteed. 


242  THE    NEWER    DEPARTMENTS 

Managers 

But  this,  in  itself,  would  not  have  met  the  demands  of 
the  supporters  of  the  voluntary  system.  Their  demand  for 
self-government  is  met  through  the  institution  of  Managers 
before  referred  to  (p.  238),  which  had  already  established  it- 
self as  a  feature  of  the  "  Board  School  "  system,  and,  under 
another  name,  was  really  in  force  in  the  voluntary  system, 
where  each  school,  or  small  group  of  schools,  was  under  the 
direct  management  of  persons  known  as  "  trustees,"  ap- 
pointed under  the  provisions  of  the  deed  of  foundation  of, 
or  the  regulations  of  the  voluntary  society  supporting,  the 
school.  All  these  persons  are  now  called  "  Managers  " ;  and 
the  appointment  of  a  group  of  Managers  for  every  school 
coming  under  the  Act  of  1902  is  compulsory. 

"  Provided  "  and  "  Non-Provided  "  Schools 

But  whereas,  in  the  case  of  "  provided "  {i.e.  purely 
State)  schools,  the  whole  of  the  Managers  are  appointed, 
either  by  the  local  education  authority,  acting  through  its 
Education  Committee,  or  by  the  "  immediate "  local  au- 
thority (usually,  in  the  rural  districts,  the  council  of  the 
parish  (p.  310)  in  which  the  school  is  situated)  ;  in  the  case 
of  voluntary  or  "  non-provided  "  schools,  the  local  educa- 
tional authority  (or  "  immediate  "  local  authority)  only  ap- 
points one  third  of  the  Managers,  whilst  the  remaining  two 
thirds  (known  as  "  Foundation  Managers  ")  are  appointed 
by  the  old  "  trustees  "  of  the  school,  who  may  appoint  them- 
selves. Thus  it  is  evident  that  whereas,  in  the  case  of  schools 
entirely  supported  by  public  funds,  the  local  authorities  can, 
by  the  choice  of  Managers,  entirely  control,  to  the  smallest 
detail,  the  management  of  the  school,  yet  in  the  case  of  "  non- 
provided  "  schools,  where  only  the  maintenance  of  the  school, 
as  distinct  from  its  buildings,  is  provided  for  out  of  public 
funds,  the  actual  management  of  the  school  is  in  the  hands 
of  the  local  trustees,  who  have  a  two  thirds  majority  of  the 
Managers.     It  must  be  carefully  observed,  however,  that, 


REFORMS    OF    1902  243 

in  matters  relating  only  to  the  secular  part  of  education, 
the  Managers,  even  of  a  "  non-provided  "  school,  must  carry 
out  the  lawful  instructions  of  the  local  Education  Committee ; 
though  the  important  matter  of  the  immediate  appointment 
and  dismissal  of  the  teaching  staff,  is,  in  all  cases,  in  the 
hands  of  the  Managers,  except  that  the  local  Education  Com- 
mittee may  object  to  any  improper  exercise  of  it,  on  any 
other  than  merely  religious  grounds,  and  that  dismissals  re- 
quire its  confirmation.  Finally,  the  burning  question  of  re- 
ligious instruction  is  temporarily  settled  by  the  rule  that, 
in  the  "  provided "  schools,  nothing  but  "  undenomina- 
tional," or  simple  Bible  instruction  shall  be  given;  while,  in 
the  "  non-provided  "  schools,  religious  instruction  of  a  doc- 
trinal type,  in  accordance  with  the  provisions  of  the  trust- 
deeds,  may  be  given.  In  both  cases,  however,  the  rule  is  sub- 
ject to  a  "  conscience  clause,"  i.e.  a  stipulation  that  parents 
who  object  to  the  form  of  religious  instiniction  given  may 
withdraw  their  children  during  the  hours  fixed  for  giving  it, 
which  must  be  conveniently  arranged  for  that  purpose. 

Higher  Education 

The  Education  Act  of  1902,  moreover,  went  far  beyond 
the  compulsory  provision  of  elementary  education,  by  en- 
acting that  the  local  education  authority  might,  either  in- 
dependently or  in  conjunction  with  other  bodies,  foster  and 
promote,  either  by  subsidies  or  the  establishment  of  its  own 
institutions,  any  kind  of  "  higher  "  education,  i.e.  any  kind 
(general  or  "technical")  not  "elementary,"  within  its 
area.  But  its  powers  in  this  direction,  though  they  have 
been  considerably  acted  upon,  in  the  provision  of  facilities 
both  for  technical  and  "  secondary  "  education  ("  county  " 
or  "municipal"  schools),  are  optional  only;  whereas  its 
powers  to  provide  elementar}^  education  are  also  duties, 
which  can  be  enforced  by  courts  of  justice.  Moreover,  while 
there  are  no  limits  save  the  necessities  of  the  case  and  the 
standard  required  by  the  Board  of  Education,  to  the  rate- 
levying  powers  of  the  local  authority  for  elementary  educa- 


244.  THE    NEWER    DEPAKTMEiNTS 

tion,  its  powers  of  levying  rates  in  aid  of  higher  education 
are  limited,  in  the  case  of  borough  and  district  councils,  to 
one  penny  in  the  pound  of  the  local  rating  assessment,  and 
to  twopence  in  the  pound  in  the  case  of  county  councils ;  un- 
less the  Local  Government  Board  should  allow  a  higher  rate. 
But  the  Board  of  Education  may,  of  course,  supplement  lo- 
cal provision  by  any  sum  which  it  can  induce  Parliament  to 
vote  for  the  purpose. 

Inspection  of  Secondary  Schools 

Finally,  the  Act  of  1902  also  makes  provision  for  the  in- 
spection of  secondary  schools  which  are  quite  independent 
of  local  control  or  support,  i.e.  the  so-called  "  Public 
Schools  "  coming  under  the  Endowed  School  Acts,  as  well 
as  the  more  modern  secondary  schools  set  up  by  private  en- 
terprise (pp.  235,  236),  and  privately-owned  schools.  The 
attractions  of  this  inspection  (which  has  made  considerable 
progress)  are  not  based  on  the  expectation  of  Parliamentary 
grants,  but  on  the  opportunities  which  it  affords  to  improve 
the  education  given  at  such  schools,  and,  perhaps,  on  the 
securing  of  an  official  approval  which  may  have  indirect 
commercial  value. 

NoN-POLiTiCAL  Departments 

It  is  not  possible,  in  a  work  of  the  present  dimensions,  to 
deal  with  what  are  known  as  the  "  non-political  "  depart- 
ments, i.e.  those  bodies  established  by  virtue  of  Act  of  Par- 
liament for  special  purposes,  and  subject  to  government 
control,  which  are  no  real  part  of  the  government  of  the  Em- 
pire. They  are  either,  like  the  Charity  Commissioners,  the 
Ecclesiastical  Commissioners,  the  Registry  of  Friendly  So- 
cieties, and  the  Public  Record  Office,  institutions  formed  and 
maintained  for  the  pui-pose  of  conserving  and  rendering  ac- 
cessible valuable  assets  which,  though  they  do  not  always 
actually  belong  to  the  State,  have  a  definite  public  interest; 
or,  like  the  National  Debt  Office,  the  Public  Works  Loans  De- 


NON-POLITICAL    DEPARTMENTS  245 

partment,  and  the  Patent  Office,  are  merely  formed  to  assist 
the  political  departments  in  doing  their  work.  One  or  two  of 
the  fomier  class  are  directly  represented  in  Parliament, 
usually  by  unpaid  minor  members  of  the  Ministry ;  but  most 
of  them  are  sub-departments  of  the  political  departments, 
manned  entirely  by  permanent  officials,  whose  actions  are 
accounted  for  in  Parliament  by  the  representatives  of  The 
Treasury,  as  general  supervisor  of  the  public  services. 

War  Departments 

For  a  different,  but  equally  adequate  reason,  it  is  impos- 
sible to  describe  the  various  new  offices,  such  as  those  of  the 
Food  and  Shipping  Controllers,  and  the  Ministries  of  Muni- 
tions, Labour,  and  Pensions,  which  have  been  established 
during,  and  for  the  purposes  of,  the  great  European  War. 
It  may  be  that  one  or  more  of  them  will  be  permanent;  but 
it  is  impossible  yet  to  say.  Some  of  them  are  "  political  de- 
partments," in  the  sense  that  their  chiefs  are  members  of, 
and  directly  responsible  to,  Parliament;  others  are  not. 


CHAPTER  XI 

THE    KING'S    COURTS    OF    JUSTICE 

Nothing  has  contributed  more  to  the  stability  of  the  British 
Empire,  or  the  respect  in  which  it  is  held,  than  the  even- 
handed  dispensing  of  justice  which  has  distinguished  its 
tribunals,  from  the  highest  to  the  lowest,  for  the  last  two 
hundred  years.  And  though  the  variety  of  the  institutions 
of  the  different  parts  of  the  Empire,  which  is  the  great  proof 
of  the  principle  of  liberty  which  animates  British  policy, 
is  manifest  no  less  in  judicial  than  in  other  spheres  of  gov- 
ernment, yet  it  will  be  found  that  the  same  great  qualities 
of  independence,  purity,  fairness,  and  patience,  which  dis- 
tinguish the  judges  of  the  United  Kingdom,  are  equally 
conspicuous  in  the  judges  of  the  Dominions,  the  Crown  col- 
onies, and  British  India. 

English  Judicial  Institutions 

Moreover,  though  it  is  quite  true,  as  has  been  said,  that 
each  part  of  the  Empire  has  its  own  judicial  system,  with  its 
own  peculiar  features,  yet  it  can  hardly  be  doubted  that,  in 
matters  of  arrangement  and  procedure,  the  courts  of  the 
Dominions  and  British  India  have,  to  a  very  large  extent, 
followed  English  models,  even  where  the  common  law  of 
England  does  not  prevail  —  the  prevalence  of  the  jury  sys- 
tem, an  unmistakeably  English  feature,  is  a  striking  ex- 
ample. Finally,  the  fact  that  there  lies,  in  almost  all  im- 
portant cases,  a  last  appeal  from  all  courts  of  justice  in 
the  British  Empire,  except,  curiously  enough,  the  courts  of 
the  United  Kingdom  itself,  to  the  Judicial  Committee  of  the 
Privy  Council,  renders  a  fairly  complete  description  of  Eng- 
lish judicial  methods  desirable. 


CRIMINAL    JUSTICE  24*7 

CRiMiNAii  Justice 

For  practical  purposes,  all  cases  which  come  before  Eng- 
lish courts  of  justice  may  be  classed  as  either  criminal  or 
civil;  and  the  arrangement  of  the  English  courts,  and  their 
procedure,  are  largely  based  on  this  distinction.  We  under- 
stand by  criminal  cases  those  in  which  the  King,  acting  in 
his  double  capacity  of  accuser  and  judge,  "  prosecutes  "  a 
person  who  is  alleged  to  have  committed  an  offence,  such  as 
murder,  theft,  serious  assault,  forgery,  and  the  like,  in  or- 
der that  the  offender  may  be  punished.  The  difficulty  which 
would  naturally  arise  from  the  double  capacity  of  the  King 
in  such  cases,  if  he  acted  in  person,  is  got  over  by  the  fact 
that  he  has  long  ceased  so  to  act  (pp.  10,  11),  and  that  his 
duties  in  each  capacity  are  now  performed  by  totally  dis- 
tinct officials.  Thus,  the  duties  of  the  King  as  accuser,  or 
prosecutor,  are  performed  by  the  Law  Officers  of  the  Crown, 
or  the  Director  of  Public  Prosecutions  working  under  their 
supervision  (pp.  224,  225),  or  even,  in  a  considerable  num- 
ber of  cases,  by  a  "  private  prosecutor,"  i.e.  a  citizen  spe- 
cially interested  in  bringing  the  alleged  offender  to  justice; 
while  the  King's  duties  as  judge  are,  as  has  been  explained 
(p.  11),  and  have  for  long  been,  entrusted  to  another  body 
of  persons  of  high  rank  and  skill,  known  as  "  His  Majesty's 
Judges,"  who  hold  the  scales  of  justice  with  a  firm  hand  be- 
tween the  prosecutor  and  the  accused,  even  when  the  former 
is  actually  a  Crown  official.  Nevertheless,  there  are  serious 
differences  between  every  proceeding  of  this  kind,  and  all 
"  civil  "  proceedings ;  one  being  that  whereas,  in  civil  pro- 
ceedings, the  parties  may  at  any  time  agree  to  compromise, 
and  end  the  proceedings,  this  cannot  be  done  in  criminal 
cases,  even  when  they  are  really  conducted  by  a  "  private 
prosecutor,"  without  leave  of  the  judge  or  magistrate,  act- 
ing in  the  King's  name.  In  the  early  days,  this  peculiarity 
was  due  to  the  fact,  that  the  compromise  of  a  criminal  case 
might  have  deprived  the  Crown  of  propei-ty  which,  on  the 
conviction  of  the  accused,  would  have  been  forfeited  to  it. 


248        THE    KING'S    COURTS    OF    JUSTICE 

Now  that  forfeiture  for  crime  has  been  abolished,  it  is  main- 
tained for  the  purpose  of  preventing  the  escape  of  criminals 
from  punishment.  In  the  case  of  the  more  serious  crimes, 
indeed,  it  is  in  itself  a  crime  to  compromise,  or  "  compound  " 
a  felony,  or  even  to  attempt  to  dissuade  a  witness  from  giv- 
ing evidence  on  the  trial. 

Civil  Justice 

A  civil  action,  on  the  other  hand,  is  a  proceeding  brought 
by  a  private  citizen,  or  by  an  official  in  his  private  charac- 
ter, to  obtain  redress  against  another  person,  official  or  pri- 
vate, for  a  wrong  alleged  to  have  been  committed  against 
the  bringer  of  the  action,  or  "  plaintiff,"  by  the  person 
against  whom  the  action  is  brought,  or  "  defendant."  In 
such  matters,  the  office  of  the  King,  performed  through  his 
officials,  is  solely  that  of  judge,  or  decider  of  the  truth  of 
the  dispute.  He  has  no  other  interest  in  the  decision  of  the 
case  than  the  desire  to  do  justice.  The  legal  advisers  of  the 
plaintiff  are  not  his  servants,  or,  if  they  are,  are  not  acting 
in  that  capacity.^  Consequently,  there  is  nothing  to  pre- 
vent such  a  proceeding  being  compromised  at  any  time  with- 
out the  leave  of  the  Court,  if  the  parties  can  agree  upon 
terms ;  though,  if  it  is  sought  to  embody  these  terms  in  a 
judgment  of  the  court,  the  judge  must,  naturally,  be  con- 
sulted, and  "  a  juror  by  leave  withdrawn."  Ordinary  exam- 
ples of  civil  cases  are  actions  for  breach  of  contract  (A 
agrees  to  sell  a  motor  car  to  B  and  fails  to  deliver  it),  or 
for  minor  offences,  known  as  "  torts,"  such  as  trespass  to 
land  or  goods,  slander,  infringement  of  patent  rights,  and 
so  on.  But  it  should  be  noted,  that  a  good  many  offences 
which  are  "  torts  "  are  also  "  crimes,"  e.g.  assault,  libel,  and 
theft ;  and  it  is  not  quite  clear  what  are  the  respective  pri- 
orities of  the  Crown  and  the  private  person  injured,  in  pur- 
suing them. 

*  A  King's  Counsel,  or  "K.  C,"  is,  technically,  a  Crown  oflBcial;  but  he  re- 
ceives no  salary,  and  his  title  merely  gives  him  a  certain  rank  in  his  profession. 


CRIMINAL    AND    CIVIL    PROCEEDINGS     249 

Akomalous  Proceedings 

There  are  a  few  kinds  of  legal  proceedings  which  will  not 
readily  fall  completely  under  either  of  the  two  divisions  above 
explained,  e.g.  it  is  not  quite  clear  whether  divorce  proceed- 
ings and  proceedings  for  breaches  of  railway  by-laws,  are 
strictly  criminal  or  strictly  civil.  But  the  division  is  useful 
as  a  basis;  and  we  will  proceed  to  deal  first  with  the  ma- 
chinery for  punishing  crimes,  and  the  courts  in  which  they 
are  prosecuted. 

ENauiKY  BY  Magisthates 

When  a  man  is  accused  of  having  committed  a  crime,  the 
first  step  is  to  bring  him  before  the  "  magistrates,"  i.e.  one 
or  more  of  the  Justices  of  the  Peace.  These  magistrates 
date  from  the  thirteenth  century,  and  are  appointed  by  the 
King,  on  the  recommendation  of  the  Lord  Chancellor  (p. 
222),  by  what  is  called  the  "  Commission  of  the  Peace  "  for 
a  county  or  borough.  Formerly  they  received  wages,  but 
have  long  since  ceased,  in  most  cases,  to  do  so ;  though  in 
London  and  a  few  other  populous  cities  a  special  class  of 
*'  stipendiary  magistrates,"  with  professional  qualifications 
and  special  powers,  are  appointed,  on  the  recommendation 
of  the  Home  Secretary,  at  substantial  salaries,  to  give  their 
whole  time  to  their  magisterial  duties.  There  is  now  no 
special  qualification  required  for  county  or  borough  Jus- 
tices ;  though  at  one  time  the  county  Justices  were  appointed 
exclusively  from  the  land-owning  class.  The  appointment 
is  not,  like  that  of  the  judges,  "  during  good  behaviour  " 
(p.  11),  but  at  the  pleasure  of  the  Crown;  and  a  Justice  of 
the  Peace  can  be  removed  by  the  simple  process  of  striking 
his  name  out  of  the  Commission.  In  the  counties,  the  Lord 
Lieutenant  (p.  6)  is  the  permanent  head  of  the  Commis- 
sion, and  has  a  good  deal  to  do  with  recommendation  to  the 
Lord  Chancellor  for  choice  of  his  colleagues,  who  have  some- 
what greater  powers  than  borough  Justices.  A  few  per- 
sons, such  as  the  Chairmen  of  County  and  District  Councils 


250        THE    KING'S    COURTS    OF    JUSTICE 

(pp.  323,  336),  are  ex  officio  Justices  during  their  holding 
of  the  qualifying  office;  but  it  is  a  feature  of  all  Justices  of 
the  Peace,  that  thej  can  only  act  in  and  for  the  county  or 
borough  for  which  they  are  appointed,  though  they  may  be 
appointed  for  more  than  one  county.  The  judges  of  the 
High  Court  (p.  263),  and  one  or  two  other  great  officials, 
are  appointed  as  Justices  for  every  county. 

Summons  or  Arrest 

An  accused  person  is  brought  before  the  magistrates 
either  by  summons,  i.e.  formal  notice  ordering  him  to  ap- 
pear on  a  certain  day,  or  by  arrest,  that  is  physical  com- 
pulsion. As  a  rule,  no  private  person  can  arrest  another, 
and  not  even  a  police  officer  can  do  so,  without  a  "  warrant," 
or  precise  order  from  a  magistrate,  which  is  only  issued  on 
sworn  testimony  as  to  the  probability  of  guilt;  but  in  a 
good  many  cases  a  police  officer  can  arrest  without  warrant, 
and  in  a  few,  a  private  person  can  do  so,  especially  when  he 
has  been  actually  present  at  the  commission  of  a  felony.^ 
Moreover,  even  a  private  person  can  take  any  steps  that 
may  be  necessary,  even  to  the  shedding  of  blood,  to  prevent 
a  felony  being  committed  in  his  presence;  though  the  great- 
est care  must  be  taken  not  to  exercise  more  force  than  is  ab- 
solutely necessary  for  the  purpose.  Still  more  clearly,  of 
course,  a  private  person  has  the  right  to  use  any  force  which 
may  be  necessary  to  prevent  the  commission  of  a  crime  of 
violence  against  himself,  his  wife,  child,  or  servant,  and  even 
against  his  property,  by  another  private  person.  This  is 
the  essential  right  of  "  self-defence  " ;  but  it  does  not  in- 
clude (except  in  rare  cases)  the  right  of  reprisal  or  punish- 
ment, still  less  resistance  to  lawful  authority,  even  where  the 
authority  is  mistakenly  exercised. 

'  A  "felony"  is  one  of  a  somewhat  arbitrarily  chosen  list  of  crimes  which 
formerly  entailed  forfeiture  of  land  and  goods,  and,  even  now,  have  peculiar 
consequences.    The  list  includes  all  the  graver  offences,  except  perjury. 


CRIMINAL    PROSECUTIONS  251 

Committal  for  Trial 

When  an  accused  person  is  brought  before  a  magistrate, 
the  business  of  the  latter  is,  in  the  first  place,  merely  to  see 
whether  there  is  a  prima  facie  case  against  him.  For  this 
purpose,  the  magistrate  hears  the  evidence,  usually  sworn 
oral  testimony,  of  the  prosecutor  and  his  witnesses.  There 
is  here  no  jury;  and  the  prisoner  is  not  in  the  least  bound 
to  make  any  statement,  or  offer  any  counter-evidence 
(though  he  may  do  so  if  he  likes),  because  it  is  a  funda- 
mental principle  of  British  justice,  only  departed  from  in 
rare  cases,  that  an  accused  person  will  not  even  be  put  upon 
his  trial,  unless  there  is  a  prima,  facie  case  made  out  against 
him  by  others.  Needless  to  say,  no  pressure  can  be  put  upon 
the  accused  to  make  him  explain  his  conduct ;  and,  even  if  he 
confesses  his  guilt,  his  confession  will  not  be  received  un- 
less it  is  entirely  spontaneous,  that  is,  not  produced  by  any 
exercise  of  authority,  legal  or  moral. 

If  the  magistrate,  after  one  or  more  hearings,  thinks  that 
no  priTnd  facie  case  has  been  made  out,  i.e.  that  no  jury 
would  convict  even  if  the  prosecutor's  evidence  were  uncon- 
tradicted, he  dismisses  the  charge,  and  the  accused  goes  free, 
though  he  may  be  charged  again  on  fresh  evidence  appear- 
ing. Usually,  moreover,  there  is  no  limit  of  time  from  the 
alleged  commission  of  the  offence,  after  which  no  charge 
may  be  brought;  though,  in  the  case  of  the  gravest  of  all 
offences,  viz.  high  treason,  there  is  a  limit  of  three  years 
(except  for  treason  committed  abroad  or  a  personal  attack 
on  the  life  of  the  King),  and  in  the  case  of  a  good  many 
minor  offences  there  is  a  time  limit.  As  a  matter  of  fact, 
prosecutions  for  ordinary  crime  frequently  take  place  many 
years  after  the  offence  has  been  committed. 

If  the  magistrate  decides  that  there  is  a  prima  facie  case 
against  the  accused,  he  "  commits  him  for  trial  " ;  but  now 
comes  a  question  which  depends  upon  the  nature  of  the  of- 
fence charged,  the  accused's  age  and  character,  or  even  his 
own  choice.     For  he  may  be  dealt  with  "  summarily,"  i^e. 


252        THE    KING'S    COURTS    OF    JUSTICE 

without  the  intervention  of  a  jury,  or  he  may  be  committed 
for  trial  at  the  Assizes,  or  to  Quarter  Sessions ;  and  a  word 
about  each  of  these  methods  will  be  necessary. 

Bail 

But,  in  the  meantime,  the  magistrate  will  have  to  decide 
(and  also  if  there  have  been  *'  remands  "  or  adjournments 
on  the  hearing  of  the  charge),  whether  the  accused  shall  be 
held  in  prison  to  await  further  proceedings,  or  "  let  out  on 
bail,"  i.e.  given  his  liberty  on  the  undertaking  of  respon- 
sible persons,  under  pecuniary  penalties,  for  his  reappear- 
ance, when  wanted.  The  law  of  bail  is,  of  course,  very  im- 
portant, because  it  is  concerned  with  personal  liberty ;  but 
it  is  impossible  to  go  fully  into  it  here.  Briefly  speaking, 
there  are  some  charges,  e.g.  of  treason,  upon  which  a  mag- 
istrate cannot  grant  bail,  except  upon  an  order  of  the  High 
Court  or  a  Secretary  of  State;  others  (including  all  other 
felonies  and  the  graver  "  misdemeanours,"  i.e.  offences  less 
than  felony)  in  which  he  mai/,  at  his  discretion,  grant  bail; 
others,  usually  the  less  grave,  in  which  he  must  grant  bail 
if  reasonable  sureties  are  forthcoming.  And  it  is  a  pro- 
vision of  the  Bill  of  Rights  of  1689,  which  probably  covers 
both  the  last  two  classes,  "  that  excessive  bail  ought  not  to 
be  required."  The  surety  or  sureties  (who  may  be  or  in- 
clude the  accused  himself)  enter  into  a  formal  contract  with 
the  Crown,  called  a  "  recognizance,"  to  the  effect  that,  if  the 
accused  is  not  forthcoming  when  he  ought  to  be,  they  will 
forfeit  a  fixed  sum;  and  a  surety  may  arrest  the  accused  if 
he  tries  to  leave  the  country  whilst  under  bail.  If  the  mag- 
istrate refuses  to  let  the  accused  out  on  bail,  and  remands 
him  to  prison,  the  accused  may  apply,  by  writ  of  Habeas 
Corpus  (pp.  33,  34),  to  a  judge  of  the  High  Court  to  be 
let  out  on  bail ;  and,  if  there  is  any  doubt  about  his  right,  it 
will  be  argued  solemnly  in  court.  It  need  hardly  be  men- 
tioned, that  the  recent  Defence  of  the  Realm  Acts  have  con- 
siderably restricted,  for  the  time  being,  the  rights  of  ac- 
cused persons  in  this  and  other  respects. 


SUMMARY    JURISDICTION  253 

"  Binding  over  to  keep  the  Peace  " 

But  it  may  not  be  so  well  known,  that  the  ancient  and 
still  useful  procedure  known  as  "  swearing  the  peace " 
against  a  person  who,  though  not,  perhaps,  guilty  of  any 
definite  crime,  has  caused  alarm  by  his  threats  or  other  be- 
haviour, is  effected  by  making  him  enter  into  sureties  for  his 
good  behaviour. 

Summary  Trial 

A  large  and  increasing  number  of  offences  are  "  punish- 
able on  summary  conviction,"  i.e.  may  be  tried  without  a 
jury  by  the  magistrates.  They  include  nearly  all  the  minor 
misdemeanours,  such  as  petty  assaults  and  thefts,  and  small 
breaches  of  public  order,  especially  disobedience  to  by-laws 
and  other  local  legislation  (p.  322)  ;  but  even  some  of  the 
graver  offences  may  be  so  tried,  if  the  accused  wishes,  or  if 
it  is  a  first  charge,  or  if  he  is  below  a  certain  age.  The  ad- 
vantages of  such  a  proceeding  to  an  accused  person  are, 
that  the  sentences  which  a  "  court  of  summary  jurisdiction  " 
can  impose,  are  lighter  than  those  open  to  a  higher  au- 
thority, and  that  the  proceedings  are  speedier,  though  in 
all  cases  there  are  stringent  rules  to  prevent  an  accused  per- 
son being  kept  long  in  prison,  or  even  on  bail,  with  a  charge 
hanging  over  him. 

Courts  of  Summary  Jurisdiction 

A  court  of  summary  jurisdiction  is,  like  the  preliminary 
court  of  enquiry,  composed  of  Justices  of  the  Peace;  but, 
unlike  the  court  which  hears  the  charge  and  commits  for 
trial,  it  must  comprise  at  least  two  Justices,  unless  the  trial 
is  by  a  stipendiary  magistrate  (p.  249).  Moreover,  while 
the  preliminary  hearing  is  not,  in  theory,  an  open  enquiry, 
and  may  be  held  anywhere,  a  summary  trial  must  be  held 
in  a  regular  court  house,  open  to  the  public.  The  tribunal 
is  known  as  "  Petty  Sessions,"  a  sitting  of  Justices  resident 
in  the  near  neighbourhood,  which  also  has  a  great  deal  of 


254        THE    KING'S    COURTS    OF    JUSTICE 

miscellaneous  business  of  other  kinds  to  do  (p.  328).  It 
hears  again  the  witnesses  for  the  prosecution,  and,  if  the 
accusation  is  denied,  of  the  accused,  and  the  speeches  of  ad- 
vocates on  both  sides;  and  ultimately  decides,  by  a  majority 
of  votes,  whether  the  accused  is  guilty,  and  either  discharges 
him  or  imposes  a  fine  or  a  limited  term  of  imprisonment. 
Thus,  it  will  be  seen,  that  not  even  a  minor  offence  can  be 
punished  without  a  double  hearing  of  the  accusation,  sup- 
ported by  oath,  and  a  hearing  of  the  accused,  in  open  court. 
Moreover  the  accused  can,  in  most  cases,  if  he  is  dissatis- 
fied with  the  decision,  appeal  to  the  Quarter  Sessions 
(p.  256)  of  all  the  Justices  for  the  county  or  the  Recorder 
(p.  256)  of  a  borough,  which  will  hear  the  case  all  over 
again,  and  either  confirm  or  quash  the  sentence.  But  the 
prosecutor  has  no  right  of  appeal. 

Trial  on  Indictment 

In  all  graver  cases,  however,  there  is  much  more  solemnity. 
The  accused  is  proceeded  against  by  formal  indictment,  or 
written  statement  accusing  him  precisely  of  a  definite  crime 
committed  in  a  particular  way ;  and  he  is  entitled  to  a  copy 
of  this  indictment  before  his  trial.  Formerly,  this  docu- 
ment was  highly  technical;  and  an  accused  person  repre- 
sented by  an  acute  legal  adviser  could  often  find  a  flaw  in  it 
which  would  compel  the  court  to  "  quash  "  it  or  set  it  aside. 
Now  it  is  much  simpler;  but  still,  if  it  fails  to  show  a  real 
crime  against  the  law,  it  is  quashed,  and  the  proceedings  are 
at  an  end,  though,  of  course,  the  accused  can  be  prosecuted 
again  on  a  proper  indictment. 

The  Grand  Jury 

Moreover,  until  quite  recently,  there  was  yet  another  pro- 
tection guaranteed  to  a  person  accused  of  an  "  indictable  " 
offence,  before  he  could  actually  be  brought  to  trial.  This 
was  the  laying  of  the  indictment  before  a  body  of  substan- 
tial persons  of  local  knowledge  and  repute,  known  as  the 
**  Grand  Jury  "  of  the  county  or  borough,  without  whose 


TRIAL    BY    JURY  255 

approval  the  charge  could  not  be  proceeded  with,  unless  it 
were  put  forward,  not  by  indictment,  but  by  "  information  " 
filed  by  the  Attorney-General  (p.  225),  or  by  the  Master  of 
the  Crown  Office  with  leave  of  the  Court,  in  the  case  of  a 
notorious  and  open  "misdemeanour"  (not  felony).  These 
"  informations,"  however,  are  not  encouraged ;  and,  until 
the  passing  of  the  Act  of  Parliament  soon  to  be  alluded  to, 
the  indictment  could  not  proceed  to  trial  unless  twelve,  at 
least,  of  the  Grand  Jury  found  a  "  true  bill,"  i.e.  that,  after 
hearing  once  more  the  witnesses  for  the  prosecution,  they 
thought  there  was  a  prvmd  facie  case  against  the  accused. 
This  additional  precaution  against  a  miscarriage  of  justice 
has,  however,  long  ceased  to  be  really  necessary,  on  account 
of  the  improvement  in  the  character  of  the  preliminary  hear- 
ing before  the  magistrates,  just  descinbed;  and,  during  the 
continuance  of  the  European  War,  it  has  been  suspended 
on  account  of  the  other  claims  on  the  time  of  the  Grand 
Jury-men.  Likewise  it  should  be  mentioned  that,  in  theory, 
the  Grand  Jury,  which  is  an  institution  going  back  at  least 
to  the  twelfth  century,  had  a  right  to  "  present  "  offences 
of  its  own  knowledge.  But  this  right  has  long  ceased  in 
practice,  to  be  exercised. 

Coroner's  Inquest 

It  ought,  however,  to  be  stated  that,  in  certain  cases,  to 
the  committal  for  trial  by  a  magistrate  may  be  added  the 
finding  of  a  coroner's  jury  (p.  327),  empanelled  to  discover 
the  cause  of  a  death  or  fire  which  has  occurred.  If,  at  such 
inquest,  the  jury  returns  a  verdict  of  murder,  manslaughter, 
or  arson,  against  a  definite  person,  that  person  may  be  com- 
mitted for  trial  on  the  verdict,  upon  which  an  indictment 
will  be  drawn  up  and  submitted  to  the  Grand  Jury,  or,  now, 
to  a  jury  of  trial.  But  there  is  nothing  to  prevent  a  sim- 
ultaneous or  subsequent  investigation  before  a  magistrate. 


256        THE    KING'S    COURTS    OF    JUSTICE 

Trial  on  Indictment 

An  indictment  or  information  is  tried,  cither  before  Quar- 
ter Sessions,  or  before  a  judge  of  the  High  Court  at  Assizes, 
in  open  court,  usually  in  the  county  in  which  the  offence  is 
alleged  to  have  been  committed ;  though,  if  the  state  of  pub- 
lic opinion  would  be  likely  to  prevent  a  fair  trial,  it  may  be 
removed  for  trial,  by  a  special  process,  to  the  Central  Crimi- 
nal Court  in  London  (the  "  Old  Bailey  "),  which  is  primarily 
the  court  for  the  trial  of  "  indictable  "  offences  committed 
within  the  Metropolitan  area  and  at  sea,  and  which  sits 
twelve  times  a  year. 

Assize  Courts 

The  Assize  Courts  are  held  three  times  a  year  in  all  coun- 
ties, and  four  times  in  certain  important  and  populous  cities 
(Manchester,  Liverpool,  Leeds).  Both  these  latter  tribunals 
are,  in  substance,  presided  over  by  a  judge  of  the  High 
Court,  or  a  Commissioner  of  experience  specially  appointed 
for  the  occasion;  though,  nominally,  the  Central  Criminal 
Court  consists  of  a  considerable  number  of  persons. 

Quarter  Sessions 

Quarter  Sessions  are,  as  their  name  implies,  held  four 
times  a  year.  In  the  counties,  they  comprise  all  the  Jus- 
tices of  the  Peace  for  the  county  who  choose  to  sit;  all  of 
whom  are  entitled  to  vote  on  the  decisions.  But  the  Chair- 
man, who  is  elected  by  his  fellow  Justices,  is  the  president 
and  mouthpiece  of  the  court,  and,  in  effect,  acts  as  judge, 
sometimes  receiving  a  salary  for  his  work.  In  the  boroughs 
which  have  separate  Quarter  Sessions,  the  trial  of  "  indict- 
able "  offences  is  held  before  the  Recorder,  a  professional 
lawyer  appointed  by  the  Crown  on  the  recommendation  of 
the  Home  Secretary  (p.  210).  Generally  speaking,  the 
question  whether  a  particular  case  is  tried  at  Assizes  or  at 
Quarter  Sessions,  is  simply  a  question  of  which  court  will 
sit  first;  but  a  certain  number  of  the  more  serious  offences, 


TRIAL    BY    JURY  257 

such  as  treason,  murder,  felonies  (other  than  burglary) 
which  are  punishable  on  a  first  conviction  with  penal  servi- 
tude for  life,  perjury,  and  bigamy,  can  only  be  tried  at  As- 
sizes. In  cases  of  rare  importance,  the  trial  is  "  at  bar  "  of 
a  court  of  the  King's  Bench  Division  (p.  263),  consisting 
of  at  least  three  judges. 

The  Juey  of  Trial 

Wherever  the  accused  is  tried,  whether  at  Quarter  Ses- 
sions, Assizes,  the  Central  Criminal  Court,  or  "  at  bar,"  he 
is  entitled  to  have  his  fate  decided  by  a  jury  of  twelve  of  his 
fellow  countrymen,^  chosen  at  random  by  the  sheriff  (p.  326) 
from  a  list  of  householders  compiled  by  the  local  authori- 
ties ;  in  fact,  it  is  probably  not  lawful  to  try  him  in  any 
other  way.  Moreover,  the  accused  has  a  right  to  "  chal- 
lenge," i.e.  object  to  any  of  the  jury-men.  He  may,  in  most 
cases  of  treason,  exercise  thirty-five  "  peremptory  "  chal- 
lenges, i.e.  without  giving  any  reasons,  and,  in  the  other 
cases  of  treason  and  all  felonies,  twenty;  in  all  cases  he  may 
challenge  "  for  cause,"  i.e.  on  good  grounds,  such  as  rela- 
tionship to  the  prosecutor,  known  hostility  to  himself  (the 
accused),  or  the  like.  And  this  challenge  may  be  either  "  to 
the  array,"  i.e.  that  the  sheriff,  through  partiality  or  mis- 
take, has  presented  a  wrong  "  panel  "  or  list  of  jurors,  or 
"  to  the  polls,"  i.e.  on  grounds  of  objection  to  individual 
jury-men. 

Oral  Evidence 

AU  the  evidence  necessary  for  proving  the  accused's  guilt 
(with  certain  rare  exceptions)  is  given  by  word  of  mouth  at 
the  trial,  and  of  course  on  oath ;  and  the  accused's  counsel  is 
entitled  to  "  cross-examine,"  or  test  by  questioning,  all  the 
witnesses  for  the  prosecution.  Then  the  witnesses  for  the 
accused  are  put  forward  by  his  counsel ;  and  the  counsel  for 

1  Temporary  exception  ought  to  be  made  in  the  case  of  offences  under  the 
Defence  of  the  Realm  Acts;  but,  even  here,  mainly,  if  not  entirely,  for  aliena 
only. 


258        THE    KING'S    COURTS    OF    JUSTICE 

the  prosecution  may  cross-examine  them.  Until  recently, 
the  accused  was  not  allowed  to  give  evidence  himself,  for  fear 
lest  he  should  "  give  himself  away  " ;  though  he  was  allowed 
to  make  a  statement  not  on  oath.  But,  in  the  year  1898,  by 
a  hotly-contested  change  in  the  law,  he  was  allowed  to  do 
so  if  he  pleased;  and,  if  he  does,  he  may  be  cross-examined 
by  the  prosecuting  counsel.  But  the  latter  may  not,  except 
in  a  few  cases,  ask  the  accused  any  question  tending  to  show 
that  the  accused  person  is  of  bad  character.  And  in  no  cir- 
cumstances can  the  accused  be  compelled  to  give  evidence; 
nor  is  the  prosecuting  counsel  allowed  to  draw  the  attention 
of  the  jury  to  the  fact  that  he  has  not  done  so,  though  the 
judge  is. 

Duties  of  the  Judge 

For  it  is  the  business  of  the  presiding  judge,  all  through 
the  trial,  to  see  that  the  rules  of  procedure  and  evidence  are 
obeyed;  though,  so  strong  is  the  sense  of  justice  in  the  legal 
profession,  that  an  advocate  who  attempted  to  violate  them 
would  hardly  have  many  more  chances  of  doing  so.  More- 
over, after  counsel  for  both  sides  have  addressed  the  jury, 
the  judge  "  sums  up  "  the  case,  i.e.  recalls  the  important 
parts  of  the  evidence  to  the  minds  of  the  jury-men,  and 
gives  them  any  directions  about  the  law  which  may  be  neces- 
sary to  enable  them  to  arrive  at  their  verdict  of  "  guilty  " 
or  "  not  guilty,"  on  the  facts.  If  the  jury  "  find  "  the  ac- 
cused "  not  guilty,"  he  is  discharged  at  once ;  and  he  can 
never  be  tried  on  the  same  accusation.  If  they  "  convict  " 
him,  i.e.  find  him  "guilty,"  the  judge  (either  at  once  or  at 
the  end  of  the  session)  pronounces  the  sentence  of  death, 
penal  servitude,  imprisonment,  or  fine,  as  the  case  may  be, 
provided  by  law ;  though,  except  in  "  capital  "  cases,  he  has 
considerable  discretion  within  certain  fixed  limits.  But  the 
verdict  of  the  jury  must  be  unanimous;  though,  if  they  fail 
to  agree,  the  accused  may  be  tried  again.  Moreover,  by  cer- 
tain recent  and  beneficial  changes  in  the  law,  what  may  be 
called  "  preventive  "  or  "  remedial  "  sentences,  such  as  "  po- 


APPEALS    IN    CRIMINAL    CASES  259 

lice  supervision"  or  "probation"  (i.e.  release  under  super- 
vision), may  be  added  to,  or  substituted  for,  ordinary  pun- 
ishments.   But  this  book  is  not  a  treatise  on  criminal  law. 

Appeals  in  Criminal  Cases 

Until  recently,  there  was  no  appeal  from  the  verdict  of  a 
jury  in  a  criminal  trial;  though  there  was  a  possible  appeal 
on  a  point  of  law  appearing  on  the  record  of  the  proceed- 
ings (e.g.  if  the  judge  gave  a  sentence  which  the  law  did  not 
authorize),  to  the  House  of  Lords  (p.  269).  And  the  Judge 
or  Chairman  at  the  trial  might  "  reverse  "  a  point  of  law 
for  consideration  of  the  Court  for  Crown  Cases  Reserved,  a 
solemn  tribunal  consisting  of  at  least  five  judges  of  the  High 
Court ;  sentence  being  "  respited  "  or  put  off  until  its  de- 
cision. But,  in  the  year  1907,  was  instituted  the  Court  of 
Criminal  Appeal,  consisting  of  an  uneven  number  (not  less 
than  three)  of  judges  of  the  King's  Bench  Division  (p.  263)  ; 
and  a  convicted  person  may  now,  as  a  matter  of  right,  ap- 
peal to  this  court  on  any  question  of  law,  and,  with  the  per- 
mission of  the  judge  at  the  trial,  or  the  Court  of  Criminal 
Appeal  itself,  on  any  question  of  fact,  e.g.  that  the  verdict 
of  the  jury  was  not  justified  by  the  evidence,  and  also,  with 
the  permission  of  the  Court  of  Criminal  Appeal,  appeal 
against  his  sentence,  except  where  that  is  absolutely  fixed 
by  law.  On  any  such  appeal,  the  Court  of  Criminal  Appeal 
has  large  powers,  if  (but  only  if)  it  thinks  there  has  been  a 
substantial  miscarriage  of  justice,  to  quash  the  conviction 
altogether,  or  modify  the  sentence,  if  the  appeal  is  against 
that  only ;  but,  unhappily,  it  has  no  power  to  order  a  new 
trial.  In  no  case  can  the  prosecutor  appeal;  though,  if  the 
accused  appeals  against  the  sentence,  he  runs  the  risk  of 
having  it  increased.  And  there  can  be  no  further  appeal 
from  the  Court  of  Criminal  Appeal;  except  to  the  House  of 
Lords  upon  a  point  of  law  which  the  Atomey-General  cer- 
tifies to  be  of  public  importance.  The  Court  for  Crown 
Cases  Reversed  has  disappeared  in  consequence  of  the  new 
Act. 


260        THE    KING'S    COURTS    OF    JUSTICE 

From  this  brief  sketch  of  English  criminal  procedure  it 
may  be  gathered  that  the  following  are  the  chief  character- 
istics of  that  procedure:  — 

(1)  That  an  accused  person  can  never  (except  in  minor  of- 

fences) even  be  put  upon  his  trial  until  the  charge 
against  him  has  been  investigated  and  found  probable 
by  one  (until  recently  two)  official  enquiries. 

(2)  That  the  whole  burden  of  proving  the  accused's  guilt  (at 

any  rate  up  to  a  point  raising  a  presumption  of  guilt) 
is  upon  the  accuser.  The  accused  cannot  be  compelled 
to  incriminate  himself;  and  even  his  voluntary  confes- 
sion is  received  with  great  caution. 

(3)  That  the  accused  is  tried  by  a  jury  of  citizens,  whose  fair- 

ness he  is  entitled  to  challenge  before  the  trial. 

(4)  That  the  evidence  against  the  accused  is  (with  slight  ex- 

ceptions) oral  testimony  on  oath;  the  witnesses  being 
subject  to  cross-examination  by  the  accused's  legal 
adviser. 

(5)  That  the  trial,  even  of  the  minor  offences  alluded  to  in 

(1),  is  in  open  court,  to  which  the  public  has  access. 

(6)  That  the  verdict  of  the  jury  is  final,  so  far  as  the  accuser 

is  concerned;  though  the  accused  has  a  modified  right 
of  appeal. 

(7)  That  the  limits  of  every  sentence  are  fixed  by  law;  though 

the  judge  has  a  good  deal  of  discretion  within  such 
limits. 

We  turn  now  to  examine  the  nature  of  the  civil  ^  courts. 

Civil  Proceedings:    County  Courts 

If  the  English  citizen  has  to  bring  an  action  for  breach 
of  contract,  or  for  trespass  or  other  "tort"  (p.  248),  the 
court  before  which  he  will  bring  it  will  depend,  in  the  first 
instance,  upon  the  amount  of  his  claim.  If  it  is  below  £100, 
or  if,  in  certain  cases,  the  value  of  the  property  about  which 
the  question  in  dispute  arises  is  not  more  than  £500,  he  will 
probably  sue  in  the  County  Court,  one  of  a  large  number  of 

•  There  is  a  slight  ambiguity  in  the  use  of  the  word  "civil"  in  this  connec- 
tion. Here  it  is  used  in  distinction  from  "criminal";  but  it  is  also  sometimes 
used  to  distinguish  military  from  non-military  tribunals  (p.  177).  For  the 
latter  purpose  it  is  better  to  use  the  word  "civilian." 


COUNTY    COURTS  261 

tribunals  scattered  all  over  the  country,  founded  under  a 
system  introduced  in  the  year  1846,  and  since  largely  ex- 
tended,^ to  supersede  a  number  of  old  independent  "  Courts 
of  Requests,"  themselves  founded  to  take  the  place  of  the 
ancient  courts  of  the  hundred  and  county  (pp.  305,  306), 
which  had  long  fallen  into  decay.  It  is  to  this  fact  that 
they  owe  their  name ;  for  they  have  no  official  connection  with 
county  institutions,  being  arranged  in  "  districts,"  each 
with  its  own  court  house,  and  grouped  into  "  circuits,"  each 
with  its  own  judge,  or,  occasionally,  judges.  These  judges 
are  not  paid  out  of  county  funds,  but  are,  as  has  been  men- 
tioned, appointed  by  the  Lord  Chancellor,  hold  their  offices 
under  the  Crown  "  during  good  behaviour,"  cannot  sit  in  the 
House  of  Commons,  and  are  paid  by  fixed  salary  out  of  the 
Exchequer.    They  are  chosen  from  barristers  of  experience. 

County  Court  Procedure 

The  procedure  in  the  County  Court  is  of  the  utmost  sim- 
plicity ;  and  great  care  is  taken  to  keep  down  legal  expenses, 
the  chief  item  on  this  account  being  the  fees  demanded  by  the 
court  itself  for  the  various  steps  in  the  proceedings.  There 
is  practically  no  "  pleading  "  or  exchange  of  written  state- 
ments of  their  case  between  the  parties;  and  the  judge,  in 
hearing  the  case,  which  is  often  conducted  by  the  parties  in 
person,  exercises  a  good  deal  of  discretion  in  reducing  formal- 
ities. Where  the  amount  in  dispute  is  over  £5,  either  party 
may,  if  he  pleases,  demand  a  jury  (which  will  consist  only 
of  eight  persons)  ;  but  this  is  rarely  done. 

Jurisdiction  of  County  Court 

The  County  Court  has  no  criminal  jurisdiction;  and  there 
are  certain  classes  of  civil  cases,  such  as  libel,  slander,  and 
breach  of  promise  of  marriage,  which  it  cannot  hear,  how- 
ever small  be  the  amount  in  dispute.  But,  in  addition  to 
ordinary  civil  actions  in  contract  and  tort,  it  can  exercise 

^  The  modem  statutes  are  the  County  Courts  Acts  of  1888  and  1903. 


262        THE    KING'S    COURTS    OF    JUSTICE 

(where  the  property  dealt  with  is  below  the  value  of  £500) 
much  of  the  "  equity  "  jurisdiction  of  the  old  Court  of  Chan- 
cery (p.  24),  such  as  the  distribution  of  the  property  of 
deceased  persons,  the  enforcement  of  mortgages  and  trusts, 
and  the  "  specific  performance  "  of  certain  classes  of  con- 
tracts, i.e.  compelling  the  defaulting  party  to  carry  out  his 
promise  instead  of  merely  paying  damages.  The  County 
Court  has  also  a  certain  small  jurisdiction  in  the  case  of  dis- 
puted wills ;  and  its  officials  are  required  to  assist  the  widows 
and  children  of  poor  persons  who  die  "  intestate  "  —  i.e. 
leaving  no  valid  will,  in  obtaining  the  necessary  authority 
from  the  Probate  Registry  (p.  265)  to  deal  with  the  de- 
ceased's property.  Also  certain  specially  chosen  county 
courts  have  jurisdiction  in  Admiralty  cases,  such  as  claims 
for  salvage,  towage,  or  seamen's  wages ;  and  certain  also  have 
jurisdiction  (to  an  unlimited  extent)  in  bankruptcy,  i.e.  the 
distribution  of  the  property  of  insolvent  persons  (alive  or 
dead)  proportionately  amongst  their  creditors.  Finally, 
there  has  been  a  tendency  in  recent  years  for  Parliament  to 
throw  a  great  deal  of  miscellaneous  business  on  to  the  County 
Court  judges;  a  conspicuous  example  being  the  duty  of 
assessing  the  compensation  for  death  or  injury  by  accident 
due  to  a  workman  or  his  representatives  under  the  Work- 
men's Compensation  Act. 

Appeals  from  the  County  Courts 

An  appeal  on  a  point  of  law  lies  from  a  county  court 
(under  certain  restrictions)  to  a  "  Divisional  "  sitting  of  the 
High  Court,  i.e.  a  sitting  at  which  at  least  two  judges  are 
present.  There  can  be  no  direct  appeal  on  a  question  of 
fact ;  but  an  unsuccessful  party  may  appeal  on  the  ground 
that  the  judge  "  misdirected  "  himself  or  the  jury  on  a  point 
of  law,  and  obtain  an  order  for  a  new  trial.  In  ordinary  mat- 
ters, there  can  be  no  further  appeal  without  leave;  but  in 
some  cases,  e.g.  of  workmen's  compensation,  appeals  on  mat- 
ters of  law  may,  and  frequently  do,  go  to  the  Court  of  Appeal, 
and,  ultimately,  to  the  House  of  Lords. 


THE    HIGH    COURT    OF    JUSTICE  263 

The  High  Court  of  Justice 

Where  the  plaintiff's  claim  exceeds  the  jurisdiction  of  the 
County  Court,  he  must,  and,  even  if  it  does  not,  he  may,  bring 
his  action  in  the  High  Court.  But,  in  the  latter  event,  if  he 
recovers  less  than  a  small  sum  (£20  in  a  case  of  contract, 
£10  in  a  case  of  tort),  he  will  get  no  costs;  while  if  he  re- 
covers more,  but  still  not  a  large  sum  (£100  in  contract, 
£20  in  tort),  he  will  only  get  costs  on  the  low  county  court 
scale.  Moreover,  actions  brought  on  contract  in  the  High 
Court  for  less  than  £100,  or  in  tort  for  any  sum  where  the 
defendant  can  show  that  the  plaintiff  is  a  person  who  cannot 
pay  costs  if  defeated,  may  be  remitted  at  once  by  the  High 
Court  to  a  county  court  for  trial.  On  the  other  hand,  cer- 
tain cases  originally  brought  in  a  county  court  may,  if  the 
defendant  can  show  that  there  is  an  important  question  of 
law  or  fact  to  be  tried,  and  w411  give  security  for  costs,  be 
transferred  to  the  High  Court. 

The  High  Court  of  Justice,  the  lower  chamber  of  the 
Supreme  Court  of  Judicature  established  in  the  year  1875, 
though  in  form  a  modern  institution,  is  a  body  which  has 
taken  over  the  duties  of  several  ancient,  or  at  least  older, 
tribunals,  some  of  which  we  have  had  occasion  to  mention 
before.  First  there  were  the  three  "  superior  courts  of  com- 
mon law  at  Westminster,"  viz.  the  King's  (or  Queen's) 
Bench,  the  Common  Bench  or  Pleas,  and  the  Court  of  Ex- 
chequer, the  three  ancient  tribunals  whose  judges,  as  before 
described  (p.  11),  gradually,  in  the  thirteenth  and  following 
centuries,  built  up  and  administered  the  "  common  law  "  of 
England.  When  the  High  Court  was  founded  in  1875,  the 
identity  of  these  three  tribunals  was  preserved  in  the  "  Divi- 
sions "  of  the  High  Court  named  after  them ;  but  they  are 
now  all  absorbed  in  the  King's  Bench  Division  of  the  High 
Court,  whose  judges  are  specially  chosen  for  their  knowledge 
of  the  common  law.  Then  there  were  the  Court  of  Chancery, 
the  great  old  court  of  equity  ^  (p.  24)  presided  over  by  the 

*  A  certain  amount  of  Equity  work  was  done  also  by  the  Court  of  Exchequer. 
This  likewise  passed  to  the  Chancery  Division. 


264        THE    KING'S    COURTS    OF    JUSTICE 

Lord  Chancellor,  which  became  the  Chancery  Division;  and 
the  Courts  of  Probate,  Divorce,  and  Admiralty,  which  became 
the  Probate,  Divorce,  and  Admiralty  Division.  The  Court 
of  Admiralty,  as  its  name  implies,  was  the  ancient  Court  of 
the  Lord  High  Admiral  (p.  167),  which  had  long  been  pre- 
sided over  by  an  expert  judge,  and  dealt  with  maritime  mat- 
ters. The  Courts  of  Probate  and  Divorce  had  been  formed 
as  separate  royal  tribunals  in  the  year  1857,  to  take  over 
the  work  of  granting  "  probates  "  of  wills  and  "  letters  of 
administration  "  of  the  estates  of  deceased  intestate  persons, 
and  of  dealing  with  matrimonial  cases,  respectively;  both  of 
which  classes  of  cases  had  formerly  been  dealt  with  by  the 
courts  of  the  EstabHshed  Church  (p.  287). 

Jurisdiction  of  the  High  Court 

At  the  present  day,  in  theory,  any  kind  of  civil  action  can 
be  begun  in  any  Division  of  the  High  Court ;  and  there  is,  of 
course,  no  limit  to  the  importance  of  actions  which  may  be 
tried  there.  But,  in  substance,  the  three  Divisions  retain  the 
classes  of  business  which  they  inherited  from  their  respective 
predecessors;  and  criminal  business  and  certain  classes  of 
"  prerogative  "  writs  can  only  be  dealt  with,  or  ordered  to 
issue,  by  the  King's  Bench  Division,  whose  judges  go  circuit 
and  hold  the  "  Assize  Courts  "  previously  mentioned  (p.  256). 
This  is  important  for  the  arrangement  of  business ;  because, 
for  example,  though  the  citizen's  right  to  have  his  case  de- 
cided by  a  jury  in  civil,  as  well  as  in  criminal  cases,  is  theo- 
retically preserved,  in  practice  "  equity  "  cases  (p.  262)  are 
still  tried  without  a  jury,  and  the  Chancery  Division  has 
no  jury  accommodation,  while  the  peculiar  nature  of  the 
business  in  the  Probate,  Divorce,  and  Admiralty  Division, 
which  is  governed,  broadly  speaking,  by  Roman  and  Canon 
Law,  not  by  pure  English  law,  renders  a  separation  of  its 
business  eminently  desirable.  Thus,  not  only  are  the  judges 
of  each  Division  a  distinct  body  of  men;  but  each  Division 
and,  within  the  Probate,  Divorce,  and  Admiralty  Division, 
almost  each  class  of  business,  has  its  separate  body  of  practi- 


JURISDICTION    OF    THE    HIGH    COURT     265 

tioners  who  attend  its  sittings ;  while  a  great  deal  of  "  pro- 
bate "  work  is  not  done  in  court  at  all,  but  in  the  Probate 
Registry  at  Somerset  House,  which  has  branches  in  the  prin- 
cipal cities  of  England.  The  same  remark  applies  to  the 
"  out  of  court "  business  of  the  King's  Bench  Division  and 
the  Chancery  Division,  an  important  class  of  preliminary  and 
supplementary  work  conducted  by  "  Masters,"  who  act  as 
the  judges'  deputies.  But,  in  strict  theory,  any  kind  of 
action  can  be  commenced  in  any  Division  of  the  High  Court, 
subject  to  liability  to  be  transferred  (at  the  cost  of  the  per- 
son choosing  the  inappropriate  division)  to  the  more  suit- 
able Division ;  and  the  curious  practice,  of  one  of  the  King's 
Courts  virtually  stopping  proceedings  commenced  in  another 
of  equal  authority,  deriving  that  authority,  too,  from  the 
same  source,  after  lasting  for  two  centuries  and  a  half,  is 
now,  happily,  at  an  end.  There  still  remains,  however,  the 
power,  usually  exercised  in  the  King's  Bench  Division,  of 
restraining  proceedings  in  courts  of  inferior  or  limited  juris- 
diction (such  as  the  Courts  of  the  Justices  of  the  Peace  and 
the  County  Courts)  by  writs  of  Prohibition,  of  ordering 
such  tribunals  to  do  their  duty  by  writs  of  Mandamus,  and 
of  removing  proceedings  from  them  for  trial  in  the  High 
Court,  by  writs  of  Certiorari. 

Superior  Courts  of  Local  Jurisdiction 

A  very  few  courts  of  superior  but  local  jurisdiction  still 
survive;  such  as  the  Chancery  Court  of  Lancaster  (with 
branches  at  Manchester  and  Liverpool),  and  the  Chancery 
of  Durham,  which  are  courts  of  equity,  the  Salford  Hundred 
Court  at  Manchester,  the  Liverpool  Court  of  Passage,  and 
the  Tolzey  Court  at  Bristol,  which  are  common  law  courts, 
and  the  Mayor's  Court  of  London,^  which  is  both.  These 
are  distinguishable  from  the  County  Courts,  in  that  the  value 
of  the  cases  which  may  be  tried  by  them  is  unlimited,  and 
from  the  High  Court,  in  that  they  only  exercise  jurisdiction 
within  a  limited  area.     In  procedure,  they  resemble  the  High 

^  The  City  of  London  Court  is  virtually  a  county  court. 


266        THE    KING'S    COURTS    OF    JUSTICE 

Court,  having  pleadings  and  other  institutions  of  a  somewhat 
formal  character. 

Civil  Procedure  in  the  High  Court 

It  would  be  out  of  place  to  attempt  here  any  detailed  de- 
scription of  the  proceedings  in  an  ordinary  civil  action.  It 
it  sufficient  to  say  that,  subject  to  the  important  differences 
mentioned  at  the  beginning  of  this  chapter  (p.  24*8),  they 
closely  resemble  the  proceedings  in  a  criminal  prosecution; 
except  that  the  pleadings,  instead  of  being,  as  in  criminal 
cases,  oral,  are  written  documents,  sometimes  of  considerable 
length  and  complexity,  exchanged  between  the  parties.  The 
rules  of  evidence,  too,  though  fundamentally  similar,  are 
marked  by  important  differences,  e.g.  the  plaintiff  can  be 
compelled  to  give  evidence,  though  neither  he,  nor  any  other 
witness,  can  be  compelled  to  answer  any  question  tending  to 
show  that  he  has  been  guilty  of  a  crime  for  which  he  could 
be  punished.  Where  there  is  a  jury,  it  finds  a  verdict  on  the 
facts  proved,  under  the  direction  of  the  judge;  where  there 
is  none,  the  judge  decides  both  on  the  facts  and  on  the  law, 
and,  in  either  case,  gives  a  judgment  for  the  plaintiff  or  de- 
fendant, which  is  enforced  by  seizure  of  the  property  of  the 
party  who  fails  to  obey  it,  and,  in  cases  of  real  obstinacy,  by 
imprisonment  of  his  person  for  a  brief  period.  But  the 
object  of  civil  proceedings  is  compensation,  not  punishment; 
and  the  barbarous  practice  of  keeping  insolvent  debtors  in 
perpetual  imprisonment  was  abolished,  largely  owing  to  the 
efforts  of  the  celebrated  novelist,  Charles  Dickens,  in  1869. 

Appeals  from  the  High  Court 

There  is  no  appeal  on  a  question  of  fact  from  the  verdict 
of  a  jury,  or  a  judge  sitting  as  a  jury;  but  the  aggrieved 
party  may  apply  for  a  new  trial,  on  the  ground  that  the 
verdict  was  against  the  weight  of  the  evidence,  or  that  the 
judge  "misdirected"  himself  or  the  jury,  or  that  certain 
evidence  was  improperly  admitted,  or,  on  the  other  hand, 
rejected,  or  even  that  the  damages  awarded  were  excessive. 


APPEALS  267 

But  the  Court  of  Appeal,  to  which  such  applications  are 
made,  is  very  loath  to  grant  them,  except,  perhaps,  on  a  ques- 
tion of  misdirection  or  reception  of  evidence  (which  are 
really  questioxis  of  law)  ;  because  it  does  not  hear  the  actual 
witnesses,  as  the  High  Court  does. 

The  Court  of  Appeal 

On  the  other  hand,  appeals  from  a  judgment  or  order  of 
the  High  Court  on  a  point  of  law  are  numerous,  and  freely 
admitted.  They  go,  in  the  first  place,  to  the  Court  of  Ap- 
peal, the  upper  chamber  of  the  Supreme  Court  of  Judicature 
(p.  263),  which  has  taken  over  the  duties  of  the  old  Court  of 
Exchequer  Chamber,  the  old  Court  of  Appeal  in  Chancery, 
and  the  old  "  Full  Court  "  of  Probate  and  Divorce.  Though 
in  theory  one  tribunal,  consisting  of  the  Lord  Chancellor 
and  the  Lord  Chief  Justice  (the  Presidents  respectively  of 
the  Chancery  Division  and  the  King's  Bench  Division),  the 
President  of  the  Probate,  Divorce,  and  Admiralty  Division, 
the  Master  of  the  Rolls  (formerly  a  high  Chancery  official 
and  judge),  and  six  specially  appointed  "Lords  Justices  of 
Appeal  "  ^  with  the  usual  judicial  tenure  (p.  11),  it  usually 
sits  in  two  sections  —  one  for  hearing  appeals  from  the 
King's  Bench  Division,  the  other  for  appeals  from  the  Chan- 
cery Division  of  the  High  Court.  As  before  remarked,  no 
witnesses  are  heard  by  the  Court  of  Appeal ;  and  there  is, 
of  course,  no  jury  there.  But  legal  arguments  on  the  case 
are  heard  and  disposed  of  —  in  final  appeals  by  at  least 
three  judges,  in  appeals  on  intermediate  questions  arising  in 
the  course  of  the  action,  by  two  judges.  The  judgment  or 
order  of  the  Court  below  is  affirmed,  or  reversed  or  altered, 
as  the  case  may  require,  and  is  put  into  force  in  accordance 
with  the  decision  of  the  Court  of  Appeal. 

*  These  are  sometimes  appointed  directly  from  the  ranks  of  barristers;  more 
often  judges  of  the  High  Court  who  have  rendered  good  service  in  that  capacity 
are  promoted  to  the  office. 


268        THE    KING'S    COURTS    OF    JUSTICE 

The  House  of  Lords 

But  the  dissatisfied  litigant  has  still  one  more  appeal,  If 
he  can  stand  the  delay  and  expense,  viz.  to  the  House  of 
Lords.  At  the  time  of  the  great  judicial  reforms  of  1875, 
before  alluded  to  (pp.  262,  263),  it  was  proposed  to  abolish 
this  right ;  and  an  Act  of  Parliament  to  that  effect  was  actu- 
ally passed.  But  it  was  altered  by  another  Act  before  the 
new  scheme  came  into  operation,  though  with  the  understand- 
ing that  there  should  be  an  alteration  in  the  composition  of 
the  House  of  Lords  when  sitting  to  hear  appeals.  This 
understanding  was  carried  out  by  a  third  Act  of  Parliament, 
passed  in  1876,  which  provided  that  no  appeal  should  be  de- 
cided by  the  House  of  Lords  unless  at  least  three  "  Law 
Lords  "  have  been  present  at  the  hearing  of  the  arguments, 
and  taken  part  in  the  decision.^  The  "  Law  Lords  "  include 
(a)  all  the  hereditary  peers  who  hold,  or  have  held,  high 
judicial  office  {e.g.  Lord  Chancellors  and  ex-Lord  Chancel- 
lors, the  Lord  Chief  Justice,  the  Master  of  the  Rolls,  and  any 
other  judges  of  the  Supreme  Court  who  may  happen  to  be 
peers), ^  and  (b)  the  "Lords  of  Appeal  in  Ordinary,"  who 
are  highly  qualified  lawyers  appointed  peers  for  life  for  the 
express  purpose  of  hearing  appeals  (pp.  123,  124).  These 
Law  Lords  likewise  hear  arguments,  often  at  great  length, 
in  the  case;  but  they  do  not  hear  witnesses,  all  the  evidence 
and  other  proceedings  in  the  courts  below  being  before  them 
in  printed  form.  As  in  the  Court  of  Appeal,  any  number  of 
them  may  deliver  separate  judgments;  and  the  decision  of 
the  majority  binds.  If  the  Lords  are  equally  divided,  the 
appeal  fails. 

1  It  will  thus  be  seen  that  no  member  of  the  House  of  Lords  is  prevented 
from  being  present  at  the  hearing  of  an  appeal,  and  voting,  if  he  thinks  fit.  Prac- 
tically speaking,  no  members  except  the  Law  Lords  ever  do  so. 

2  As  a  matter  of  fact,  ordinary  judges  of  the  Court  of  Appeal  and  the  High 
Court,  who  happen  to  be  peers,  do  not  consider  it  desirable  to  attend  the  hearing 
of  appeals  as  members  of  the  House  of  Lords. 


APPEALS  269 

The  Judges  as  Advisers  of  the  House  of  Lords 

One  of  the  most  interesting,  though  rare,  features  of  the 
House  of  Lords  sitting  as  an  appeal  tribunal,  is  the  occasional 
attendance  thereat  of  the  judges  of  the  High  Court,  as  ad- 
visers of  the  House.  The  right  of  the  House  of  Lords  to  the 
benefit  of  the  assistance  of  the  King's  judges  is  very  ancient, 
and  is  kept  alive  in  the  writs  which  are  sent  to  each  of  such 
judges  at  the  summoning  of  each  Parliament.  As  has  been 
said,  it  is  very  rarely  exercised ;  and  it  is  a  little  doubtful 
which  of  the  judges  of  the  High  Court  are  now  bound  to 
attend.  But,  occasionally,  if  an  appeal  of  exceptional  diffi- 
culty or  importance  is  to  be  heard,  the  judges  are  summoned, 
and,  after  hearing  the  arguments,  deliver,  either  separately 
or  through  the  mouths  of  one  or  more  of  them,  speeches  of 
advice,  which  are,  substantially,  judgments  on  the  points  in- 
volved ;  though  the  House  is  not  bound  to  follow  them.  After 
the  judges  have  delivered  their  opinions,  they  receive  the. 
thanks  of  the  House  and  withdraw ;  and  then  the  Law  Lords 
present  "  move  "  the  House  in  accordance  with  their  own 
individual  views,  formed,  of  course,  after  hearing  the  advice 
of  the  judges. 

The  Judicial  Committee 

The  last  tribunal  sitting  in  London  which  it  is  necessary 
to  describe  in  this  chapter,  is  not  an  English  tribunal  at  all; 
for  it  does  not,  practically  speaking,  hear  appeals  from  Eng- 
lish courts.  It  is,  however,  a  tribunal  of  great  and  growing 
importance,  and  of  a  distinctly  imperial  character.  This  is 
the  Judicial  Committee  of  the  Privy  Council,  formed  in  the 
year  1833,  to  take  over  the  jurisdiction  which  had  long  been 
exercised  in  the  hearing  of  appeals  from  the  colonial  and 
Indian  Courts,  by  the  Privy  Council,  in  its  character  of  gen- 
eral adviser  of  the  Crown  in  matters  of  policy.  Till  1833, 
this  jurisdiction  was  exercised  in  a  somewhat  casual  manner; 
but,  in  that  year,  an  attempt  was  made  to  give  it  a  judicial 
character,  by  providing  that  all  appeals  to  the  Privy  Council 


270        THE    KING'S    COURTS    OF    JUSTICE 

should  be  referred  to  a  committee  consisting  of  the  Lord 
President  of  the  Council  (p.  224),  the  Lord  Chancellor,  such 
of  the  other  members  of  the  Privy  Council  as  held,  or  had 
held,  high  judicial  office,  and  two  other  specially  appointed 
members.  To  these  were  added,  in  1871,  four  specially  ap- 
pointed paid  members.  But  these  latter  were  superseded  in 
1876  by  the  four  (now  six)  Lords  of  Appeal  in  Ordinary 
(p.  268)  ;  and  not  more  than  seven  judges  or  ex-judges  of 
the  superior  colonial  courts,  and  two  of  the  superior  Indian 
courts,  may,  if  members  of  the  Privy  Council,  be  added. 
Thus  the  Judicial  Committee  is  assuming,  more  and  more,  an 
imperial  character ;  and,  as  a  matter  of  fact,  the  cases  which 
come  before  it  are  of  the  most  varied  kind,  and  involve  an 
intimate  knowledge  of  the  most  varied  systems  of  law.  Any 
number  of  "  Boards  "  or  divisions  of  it  may  sit ;  but  at  least 
three  members  must  be  present  at  the  hearing  of  each  ap- 
peal. A  peculiarity  of  the  decisions  is  that,  being  in  the 
form  of  advice  tendered  to  His  Majesty,  no  differences  of 
opinion  among  the  members  of  the  Board  are  allowed  to 
transpire;  the  advice  taking  the  form  of  a  written  discourse 
(in  effect  a  judgment)  read  by  a  single  member  of  the  Board, 
after  all  have  consulted  together.  The  weak  point  of  the 
tribunal  is,  that  its  decisions  may  be  largely  determined  by 
the  selection  of  members  to  sit  on  a  particular  occasion. 
Nominally,  this  selection  rests  with  the  Lord  President  of 
the  Council  (p.  224)  ;  in  practice,  it  is  believed  to  be  exercised 
by  the  Lord  Chancellor  of  the  day.  One  of  the  very  few 
anti-imperial  symptoms  which  have  manifested  themselves  in 
recent  years  has  been,  the  unwillingness  of  some  of  the  self- 
governing  Dominions  to  submit  cases  to  the  decision  of  the 
Judicial  Committee ;  but  the  growing  strength  and  imperial 
character  of  that  body  will  probably  correct  this  tendency. 
It  should,  perhaps,  be  mentioned  that,  owing  to  the  rule  pre- 
viously alluded  to  (j).  259),  appeals  on  criminal  matters 
rarely  come  before  the  Judicial  Committee ;  but,  occasionally, 
"  special  leave  to  appeal  "  in  a  criminal  case,  to  prevent  a 
miscarriage  of  justice,  is  given  by  the  Committee  itself. 


JUDICIAL    IMMUNITY  271 

Judicial  Privilege 

Before  leaving  the  subject  of  English  administration  of 
justice,  we  should  mention  one  of  its  characteristics  which, 
though  it  may  not  be  peculiar  to  the  British  Empire,  is  of 
first-rate  importance,  and  has  spread  throughout  that  Em- 
pire. This  is  the  principle  of  judicial  immunity  in  respect 
of  aU  acts  done  and  words  said  in  the  exercise  of  judicial 
office.  We  have  seen  how  the  independence  of  judges  towards 
the  King  and  his  Ministers  was  secured  by  the  provision  of 
the  Act  of  Settlement  which  enacted  that  the  judges'  tenure 
should  be  "  during  good  behaviour,  and  their  salaries  ascer- 
tained and  established"  (p.  12).  It  is  equally  important, 
that  a  judge  should  not  stand  in  constant  fear  of  malicious 
prosecutions  or  actions  instigated  by  private  persons  who 
fancy  themselves  to  have  been  injured  by  something  said  or 
done  by  him  in  the  exercise  of  his  office  —  it  would  be  impos- 
sible for  him  fearlessly  to  do  his  difficult  duty  if  he  did.  Ac- 
cordingly, no  such  prosecution  or  action  will  lie  against  any 
judge,  superior  or  subordinate  (including  a  magistrate  act- 
ing as  a  judge,  e.g.  at  Quarter  Sessions),  however  real  the 
grievance  of  the  complainant.  A  judge  is,  of  course,  liable, 
like  any  private  person,  to  prosecution  or  action  for  any 
acts  done  or  words  spoken  outside  his  judicial  duty;  and,  if 
he  is  convicted  of  crime,  he  will  be  deprived  of  his  office. 
Moreover,  there  is  a  doctrine,  that  if  a  subordinate  judge 
meddles  with  matters  obviously  outside  his  jurisdiction,  he 
loses  his  peculiar  judicial  privilege,  which,  it  must  again  be 
observed,  extends  to  judicial  acts  only  —  e.g.  even  a  High 
Court  judge  is  liable  to  a  fine  for  refusing  to  grant  an  oppor- 
tunity for  the  issue  of  a  writ  of  Habeas  Corpus  (p.  34).  But 
the  remedy  for  judicial  misbehaviour  is  an  Address  by  Par- 
liament to  the  Crown  for  removal  of  the  offender,  as  pro- 
vided by  the  Act  of  Settlement.  It  is,  perhaps,  needless  to 
say  that  no  such  Address  has  been  presented  since  the  pass- 
ing of  the  Act  of  Settlement ;  but  it  may  be  pointed  out  that 
the  very  few  judges  who  have  taken  advantage  of  their  privi- 


272        THE    KING'S    COURTS    OF    JUSTICE 

lege  to  utter  irrelevant  words,  whether  political  or  merely 
facetious,  on  the  Bench,  have  been  condemned  by  the  univer- 
sal disapproval  of  enlightened  public  opinion. 

Scottish  Courts 

As  has  been  remarked  in  a  previous  chapter  (p.  46),  the 
Act  of  Union  with  Scotland,  which  created  the  Kingdom  of 
Great  Britain,  expressly  guaranteed  to  Scotland  her  separate 
and  different  system  of  private  law  and  law  courts.  The 
great  court  of  law  in  Scotland  is  the  Court  of  Session,  a  uni- 
versal College  of  Justice,  whose  Senators,  or  Judges,  have 
both  criminal  and  civil  jurisdiction  to  any  extent. 

The  Court  of  Session 

Its  civil  side  is  arranged  in  two  "  Houses,"  an  Outer 
House,  of  five  "  Lords  Ordinary,"  in  which  cases  are  first 
tried  by  single  judges,  with  or  without  juries,  and  an  Inner 
House,  or  Court  of  Appeal,  consisting  of  eight  judges,  viz. 
the  Lord  President  (the  head  of  the  whole  College),  the  Lord 
Justice  Clerk,  and  six  "  Lords  Ordinary,"  sitting  in  two 
divisions  of  four  judges  each.  The  Court  of  Session  has 
taken  over  the  duties  of  the  former  Jury  Court  (which,  on 
the  introduction  of  the  jury  in  civil  cases  in  Scotland,  was 
established  to  try  questions  of  fact  remitted  by  the  Court 
of  Session),  the  former  Court  of  Exchequer,  established  at 
the  Union  to  deal  with  revenue  matters,  and  the  former  Court 
of  Admiralty.  The  criminal  jurisdiction  of  the  Court  of 
Session  is  exercised  under  the  supervision  of  the  Lord  Justice 
General,  whose  office  is  now  united  with  that  of  the  Lord 
President,  and  whose  former  court,  the  High  Court  of  Jus- 
ticiary, is  united  with  the  Court  of  Session ;  while  the  regular 
judges  in  criminal  cases  are  the  five  "  Lords  Ordinary  "  who 
form  the  Outer  House,  sitting  as  "  Lords  Commissioners  of 
Justiciary."  Cases  are  tried  before  them  by  juries  of  fifteen, 
who,  in  addition  to  the  ordinary  verdicts  of  "  guilty  "  or 
"not   guilty"   (p.   258),  may  find  the  charge  against  the 


SCOTTISH    COURTS    OF    JUSTICE  273 

"  panel  "  (or  accused)  "  not  proven,"  which  leaves  him  liable 
to  be  tried  again  on  the  same  charge.  The  Lords  Ordinary 
go  their  circuits  twice  a  year  throughout  Scotland  to  try 
criminal  cases,  "  on  the  grass  and  on  the  com  "  —  i.e.  in 
spring  and  autumn. 

Appeals  from  Scotland 

There  lies  an  appeal  in  all  civil  cases  from  the  judgment 
of  the  Inner  House,  or  Court  of  Appeal  in  Scotland,  to  the 
House  of  Lords  of  the  Unitad  Kingdom,  whose  proceedings 
have  already  been  described  (pp.  268-270).  Of  course 
Lords  of  Session  who  happen  to  be  peers  may  sit,  if  they 
choose,  on  the  hearing  of  such  appeals ;  and,  as  a  matter  of 
practice,  one  at  least,  if  not  more,  of  the  Lords  of  Appeal 
in  Ordinary  (pp.  123,  124)  is  usually  chosen  from  the  ranks 
of  Scottish  judges.  There  is  no  appeal  from  the  Lords  Com- 
missioners of  Justiciary  in  criminal  cases. 

Sheriffs'  Courts 

Contrary  to  the  English  practice,  the  same  local  courts 
in  Scotland  exercise  both  criminal  and  civil  jurisdiction. 
These  are  the  Sheriffs'  Courts,  which,  on  the  abolition  of  the 
hereditary  jurisdictions  of  the  clan  chiefs  in  1746,  became 
the  regular  tribunals  for  local  jurisdiction,  civil  and  crim- 
inal, throughout  Scotland.  They  are  more  important  than 
the  English  Quarter  Sessions  and  county  courts ;  because 
their  jurisdiction  is,  in  theory,  not  limited  in  amount,  though 
their  power  to  award  criminal  sentences  is.  The  Sheriff,  a 
county  official,  is  appointed  by  the  Crown,  on  the  advice  of 
the  Secretary  for  Scotland  (p.  47),  on  a  "  good  behaviour  " 
tenure;  but  much  of  his  judicial  work  is  done  by  a  Sheriff- 
Substitute,  who  may  be  removed  from  office  by  the  Secretary 
for  Scotland  on  a  report  by  the  Lord  President  and  the  Lord 
Justice  Clerk. 

The  Sheriff's  Court  sits  without  a  jury  in  civil  cases,  ex- 
cept in  claims  by  employees  for  injuries  arising  out  of  em- 


274        THE    KING'S    COURTS    OF    JUSTICE 

ployment.  But  where  the  claim,  in  any  other  case,  is  for 
more  than  fifty  pounds,  either  party  may  require  the  case 
to  be  remitted  to  the  Court  of  Session,  for  trial  with  a  jury. 
The  interests  of  the  Crown  in  criminal  cases  are  enforced 
by  a  "  procurator-fiscal  "  for  the  county,  appointed  by  the 
Lord  Advocate  (the  chief  Scottish  Law  Officer)  ;  and  appeals 
in  civil  cases  lie  from  Sheriff-Substitute  to  Sheriff,  and,  where 
the  value  of  the  cause  exceeds  fifty  pounds,  from  the  Sheriff 
to  the  Court  of  Session.  Justices  of  the  Peace  for  the  county 
are  appointed  as  in  England;  but  their  position  is  less  im- 
portant, especially  in  judicial  matters,  than  that  of  their 
English  brethren,  owing  to  the  greater  importance  of  the 
Scottish  sheriffs.  They  have,  however,  a  small  debts  juris- 
diction up  to  twenty  pounds,  and  a  summary  jurisdiction 
(pp.  253,  254)  in  small  criminal  cases.  The  Justices  of  the 
Peace  are  the  licensing  authority  in  the  burghs ;  but  in  the 
counties  they  share  this  duty  with  the  County  Councils. 

Irish  Courts:  The  High  Court 

The  Irish  system  of  courts  of  justice,  like  the  Irish  law, 
is  much  closer  to  the  English  system  than  is  the  Scottish, 
There  are  a  Lord  Chancellor  and  a  Lord  Chief  Justice,  at 
the  head  respectively  of  the  Chancery  and  King's  Bench 
Divisions  of  the  High  Court  of  Justice  in  Ireland,  which  is 
the  lower  chamber  of  the  Irish  Supreme  Court  of  Judicature. 
But  the  Probate  and  Matrimonial  and  the  Admiralty  Courts 
are  still  separate  Divisions ;  and  so  is  the  Court  of  Bank- 
ruptcy, which,  in  England,  is  now  merged  in  the  King's  Bench 
Division.  There  is  no  Divorce  Court  in  Ireland;  because 
Irish  law  does  not  recognize  divorce ;  ^  though  decrees  of 
nullity  (i.e.  that  there  never  has  been  any  lawful  marriage), 
or  of  judicial  separation,  can  be  obtained  from  the  Probate 
and  Matrimonial  Division  in  appropriate  cases.     There  are, 

^  The  only  way  of  obtaining  a  divorce  between  persons  domiciled  in  Ireland 
b  by  securing  the  passage  through  the  Imperial  Parliament  of  a  Private  Act, 
usually  based  on  a  verdict  of  crim.  con.  in  the  Irish  King's  Bench  Division.  In 
the  examination  in  select  committee  (p.  147)  the  case  is  usually  reheard  as  an 
ordinary  trial. 


IRISH    COURTS    OF    JUSTICE  275 

however,  special  Land  Courts,  for  dealing  with  questions 
arising  under  the  numerous  Acts  of  Parliament  dealing  with 
the  relations  of  landlord  and  tenant  in  Ireland. 

The  Court  of  Appeal, 

The  upper  chamber  of  the  Supreme  Court  in  Ireland,  as 
in  England,  is  the  Court  of  Appeal,  consisting  of  the  Lord 
Chancellor  and  the  Lord  Chief  Justice,  with  the  Master  of 
the  Rolls  and  two  specially  appointed  Lords  Justices  of 
Appeal,  who  hear  cases  in  sessions  of  not  less  than  three 
judges,  unless  the  appeal  is  on  a  merely  incidental  matter. 
From  the  Court  of  Appeal  lie  appeals  on  questions  of  law  to 
the  House  of  Lords,  which,  as  in  the  instance  of  Scotland, 
includes  amongst  its  "  Law  Lords  "  at  least  one  Irish  lawyer 
specially  appointed  for  the  purpose. 

Inferior  Courts 

Inferior  jurisdiction  in  Ireland  is  exercised  by  County 
Courts,  which  have  a  greater  authority  and  area  than  the 
County  Courts  in  England,  being  really  connected  with  the 
county,  and  fewer  in  number.  The  limit  of  their  compulsory 
jurisdiction  in  civil  cases  is  fifty  pounds,  in  ordinary  cases; 
but  they  exercise  criminal  jurisdiction,  being  in  fact  com- 
bined courts  of  Quarter  Sessions  and  county  courts  in  the 
English  sense,  with  the  Chairmen  of  the  Justices  acting  as 
Civil  Bill  Court  judges.  Criminal  jurisdiction  in  heavy 
cases  is,  of  course,  also  exercised  by  the  judges  of  the  High 
Court  on  circuit,  in  much  the  same  manner  as  in  England; 
and  in  Dublin,  Belfast,  Cork,  Londonderry,  and  Galway, 
there  are  Recorders  with  considerable  criminal  jurisdiction, 
which,  in  normal  times,  is  exercised  with  the  aid  of  a  jury. 
There  are  also  Petty  Sessional  Courts  with  jurisdiction  over 
minor  offences,  as  in  England ;  but  a  special  feature  of  Irish 
criminal  jurisdiction  is  the  local  sessions  of  the  Resident 
Magistrates,  of  whom  there  are  about  sixty,  scattered 
throughout  the  country,  who  correspond  to  the  Stipendiary 


276        THE    KING'S    COURTS    OF    JUSTICE 

Magistrates  in  England  (p.  249),  but  have  certain  special 
powers  and  duties  not  belonging  to  their  English  colleagues. 

Courts  of  Justice  in  the  Colonies  and  British  India, 
AND  Power  of  the  Crown  to  create 

Though  justice  is  administered  in  the  King's  name 
throughout  the  Empire,  with  the  possible  exception  of  tlie 
Channel  Islands  (where  judicial  institutions  are  primitive), 
a  somewhat  startling  difficulty  meets  us  on  the  threshold  of 
a  brief  description  of  the  judicial  systems  of  the  colonies  and 
British  India,  owing  to  the  existence  of  an  old-established 
principle  of  constitutional  law,  acted  upon  within  compara- 
tively recent  times,  to  the  effect  that  the  Crown  cannot  create 
new  jurisdictions  or  new  courts,  without  the  authority  of 
Parliament.  Inasmuch  as  many  British  colonies  have  been 
acquired  since  this  doctrine  was  laid  down,  the  position  of 
their  courts  seems  to  demand  a  word  of  explanation. 

In  "  Settled  "  Colonies 

Apparently,  in  colonies  acquired  by  settlement  (p.  57), 
the  rule  that  the  settlers  take  with  them  so  much  of  the  Eng- 
lish common  law  as  is  suitable  to  their  conditions,  seems  to 
have  been  considered  as  authorizing  the  Crown  to  establish 
by  Letters  Patent  in  such  colonies  courts  on  the  English 
model,  to  administer  such  law ;  though  not  to  establish  courts 
of  "  equity  "  or  ecclesiastical  jurisdiction. 

"  Ceded  "  Colonies 

In  the  case  of  conquered  or  ceded  colonies,  apparently, 
the  admitted  right  of  the  Crown  to  legislate  for  these  by 
Order  in  Council  until  the  grant  of  representative  institu- 
tions (p.  71),  was  held  to  include  the  right  to  set  up  new 
courts,  or  recognize  old.  At  any  rate,  in  both  cases,  the 
Crown  did  create  such  courts  by  Orders  in  Council.  Then 
came  the  development  of  colonial  legislatures  in  the  first 
half  of  the  nineteenth  century  (pp.  35,  36)  ;  and  these  new 


COLONIAL    COURTS  277 

legislatures  freely  assumed  the  power  of  creating  or  manag- 
ing the  judicial  systems  of  their  colonies. 

Colonial  Laws  Validity  Act 

This  power  was  questioned  in  the  middle  of  the  nineteenth 
century;  but  all  doubts  as  to  its  existence  were  set  aside  by 
an  Act  of  the  Imperial  Parliament  in  1865,  before  alluded  to 
(p.  66),  which  declares  that  every  colonial  legislature  has, 
and  shall  be  deemed  always  to  have  had,  full  power  to  estab- 
lish courts  of  judicature  for  its  colony,  and  to  abolish  and  re- 
constitute them,  and,  generally,  to  make  provision  for  the 
administration  of  justice.  The  greater  tribunals  of  the 
Dominions  and  British  India  have  been  directly  created  by 
Acts  of  the  Imperial  Parliament;  their  validity  is,  there- 
fore, beyond  question. 

British  Settlements  Act 

Finally,  by  the  British  Settlements  Act  of  1887,  previously 
alluded  to  (p.  91),  the  Crown  is  empowered  to  establish, 
by  Order  in  Council,  in  any  colony  not  acquired  by  cession 
or  conquest,  and  not  within  the  jurisdiction  of  any  legisla- 
ture (other  than  a  legislature  created  under  the  Act  itself), 
such  courts  of  justice  and  officers  thereof  as  it  may  deem 
necessary.  The  wording  of  this  statute,  however,  practically 
restricts  its  operation  in  this  respect  to  a  very  few  cases. 

Vice-Admiralty  Courts 

The  Vice-Admiralty  Courts  of  the  colonies,  which  seem  to 
have  been  originally  derived  from  the  ancient  jurisdiction 
of  the  Lord  High  Admiral  (p.  166),  were  regulated  by  Acts 
of  the  Imperial  Parliament  in  1863  and  1867 ;  but  their  juris- 
dictions were,  in  the  year  1890,  transferred  by  another  Act 
to  the  ordinary  colonial  courts. 

Variations  of  System 

It  Is  natural,  therefore,  to  find  that  considerable  differ- 
ences of  arrangement  exist  in  the  judicial  systems  of  the 


278       THE    KING'S    COURTS    OF    JUSTICE 

different  parts  of  the  Empire.  The  essential  features  of 
British  justice  are  found,  not  only  in  judicial  arrangements, 
but  in  the  principles  upon  which  those  arrangements  are 
worked  (p.  260).  And  it  will  be  found  that,  with  rare  excep- 
tions, these  principles  are  adopted  throughout  the  Dominions 
and  British  India,  as  in  the  United  Kingdom.  Thus,  for 
example,  the  fixity  of  tenure  and  freedom  from  private  lia- 
bility of  the  judges,  their  payment  by  fixed  and  substantial 
salaries,  their  appointment  by  the  Crown  on  the  recommen- 
dation of  its  responsible  advisers,  their  exclusive  employment 
in  their  judicial  duties,  and  their  selection  from  the  ranks 
of  skilled  lawyers ;  the  right  of  an  accused  person  to  trial  by 
jury  in  all  serious  cases;  the  refusal  to  compel  an  accused 
person  to  incriminate  himself,  and  the  unwillingness  to  accept 
even  his  voluntary  confession  of  guilt;  the  insistence  upon 
oral  and  first-hand  evidence;  the  holding  of  open  court; 
the  limitation  of  sentences  by  law  —  all  these  are  features  of 
the  administration  of  British  justice  throughout  the  Empire, 
even  where  English  law  does  not  prevail. 

Tendency  towards  Uniformity 

And,  further,  it  may  be  observed  that,  while,  as  has  been 
said,  great  variety  prevails  in  the  judicial  institutions  of  the 
Empire,  recent  events  have  substantially  tended  towards  uni- 
formity. This  is  especially  marked  in  the  three  great  Domin- 
ion federations  (p.  57),  the  appearance  of  which  has  been 
such  a  striking  feature  of  the  last  half  century. 

Federal  Courts 

In  Canada,  Australia,  and  South  Africa,  there  are  Federal 
Courts,  composed  of  judges  of  the  highest  eminence,  which 
act  in  the  dual  capacity  of  courts  of  first  instance  for  cases 
of  federal  importance  (such  as  disputes  affecting  more  than 
one  member  of  the  federation,  and  breaches  of  federal  laws), 
and  courts  of  appeal  from  the  superior  courts  of  the  respec- 
tive "  states  "  or  "  provinces."  In  Canada  and  Australia, 
the  federal  judges  are  federal  judges  only;  in  South  Africa, 


DOMINION    TRIBUNALS  279 

the  Federal  Court  is  strengthened  by  the  inclusion  within  its 
ranks  of  two  "  additional  judges,"  who  are  also  Presidents 
of  Provincial  Divisional  Courts. 

State  and  Provincial  Superior  Courts 

But  in  the  Provinces  of  Canada  and  the  States  of  Aus- 
tralia, as  well  as  in  the  Dominion  of  New  Zealand,  there  is 
also  a  double  system  of  courts  of  superior  and  unlimited 
jurisdiction,  one  of  "  first  instance,"  i.e.  before  which  cases 
come  for  first  hearing,  and  another  of  appeal;  though,  for 
historical  reasons,  the  arrangements  are  not  the  same  in  all 
these  communities.  Thus,  in  the  older  provinces  of  Canada, 
there  are  two  distinct  superior  tribunals,  one  of  first  instance 
and  one  of  appeal.  Ontario  has  a  Supreme  Court,  with 
Appellate  and  High  Court  Divisions,  and  a  different  staff  for 
each;  the  President  of  the  High  Court  Division  retaining  the 
old-world  title  of  "  Chancellor."  In  Quebec,  the  appellate 
tribunal  is  the  King's  Bench,  with  a  Chief  Justice  and  five 
colleagues ;  while  the  "  Supreme  Court,"  with  a  Chief  and 
no  less  than  thirty-three  "Puisne"  or  junior  judges,  is  a 
court  of  first  instance.  In  New  Brunswick,  Manitoba,  and 
British  Columbia,  there  are  distinct  Courts  of  Appeal,  with 
courts  of  first  instance  under  different  titles.  In  the  other 
Canadian  provinces,  in  Newfoundland,  in  the  States  of  Aus- 
tralia, and  in  the  Dominion  of  New  Zealand,  there  is  but 
one  superior  court  and  staff;  but  arrangements  are  made 
whereby  an  appeal  can  be  brought  from  a  single  judge  to  a 
"Full  Court"  of  his  colleagues  (usually  three  in  number), 
sitting  as  a  court  of  appeal.  In  Queensland  and  New 
Zealand,  owing  to  difficulties  of  travel,  the  superior  judges 
are  distributed  among  different  areas  of  the  colony;  though 
all  take  equal  rank,  and  sit  on  the  hearing  of  appeals  from 
the  decisions  of  their  colleagues.  Appeals  from  the  Divi- 
sional Courts  of  South  Africa,  however,  which  are  attached 
to  the  various  provinces  and  districts  of  the  Union,  go  direct 
to  the  Supreme  Court  of  the  Union.  Even  in  the  Northern 
Territory  of  Australia,  which  is  under  the  direct  govern- 


280        THE    KING'S    COURTS    OF    JUSTICE 

ment  of  the  federal  authorities,  exercised  through  an  Ad- 
ministrator, there  is  a  Supreme  Court;  and  there  are  judicial 
officers,  with  various  titles,  for  the  North-West  and  Yukon 
Territories  of  Canada,  and  for  Papua,  which  are  under  the 
control  of  the  Dominion  Governments  of  Canada  and  Aus- 
tralia respectively.  Also,  in  the  maritime  colonies  of  Canada, 
there  are  distinct  Courts  of  Admiralty  and  Vice- Admiralty, 
which  are  usually  presided  over  by  judges  of  the  superior 
courts.  In  Victoria,  South  Australia,  and  Queensland,  there 
are  local  courts  (known  as  "  county  "  or  "  district  "  courts) 
of  civil  jurisdiction;  and  in  most  of  the  provinces  or  States 
of  the  older  self-governing  Dominions  there  is  a  system  of 
magistrates,  with  Quarter  or  General,  and  lesser  Sessions, 
as  in  England,  for  disposing  of  smaller  criminal  cases. 

Industrial  Tribunals 

Finally,  we  must  not  omit  to  notice  the  very  important 
recent  development,  especially  marked  in  Australia  and  New 
Zealand,  of  "  Industrial "  or  Arbitration  Courts,  for  the 
decision  of  industrial  and  labour  disputes.  In  experimenting 
in  this  direction,  the  self-governing  Dominions  are  rendering 
the  highest  service  to  the  Empire ;  for  the  peaceful  settlement 
of  industrial  difficulties  will  be  one  of  the  greatest,  if  not  the 
greatest,  of  the  problems  of  public  policy  in  the  near  future. 
The  example  of  the  Dominions  has  already  been  followed  to 
a  limited  extent,  in  Great  Britain ;  but  the  striking  difference 
between  English  and  Dominion  industrial  tribunals  is  that, 
whilst  the  former  are  purely  administrative  in  character,  and 
have  (apart  from  "  war  "  legislation)  no  coercive  power,  the 
Dominion  Industrial  Courts  are  much  more  judicial  in  char- 
acter, and  have  considerable  power  to  enforce  their  awards. 
It  would,  indeed,  be  a  great  step  gained,  if  the  settlement  of 
industrial  disputes  could  be  determined  by  an  application 
of  those  principles  of  justice  which  have  been  successfully 
applied  to  other  quarrels,  instead  of  being  left  to  the  arbitra- 
ment of  what  is,  in  many  cases,  little  better  than  industrial 
war. 


CROWN    COLONIES  — BRITISH    INDIA       281 

The  Ceown  Colonies 

In  the  Crown  colonies,  where  the  judges  are  directly  ap- 
pointed by  the  Colonial  Office,  usually  from  the  ranks  of 
English  barristers,  there  is  even  more  variety  of  arrange- 
ments. Only  the  larger  or  more  wealthy  colonies  have  Su- 
preme Courts,  with  Chief  and  Puisne  (or  junior)  Justices; 
and  very  few  have  Courts  of  Appeal.  But  from  all  these 
courts,  at  any  rate  in  important  cases,  there  lies  a  final 
appeal  to  the  Judicial  Committee  of  the  Privy  Council 
(pp.  269—270),  to  which  appeals  from  the  highest  courts  of 
the  self-governing  Dominions  also  lie,  except  where  the  right 
has  been  expressly  abolished  by  Act  of  the  Imperial  Parlia- 
ment. For  reasons  previously  explained  (p.  259),  substan- 
tially all  these  appeals  are  in  civil  cases ;  though  a  consider- 
able proportion  of  them  affect  the  rights  of  the  Crown. 

Liability  of  State  Departments 

Finally,  it  may  be  noticed,  as  a  strong  mark  of  independ- 
ence, that  in  some  of  the  self-governing  Dominions,  the 
maxim  that  "  the  King  can  do  no  wrong,"  has  been  impaired 
by  colonial  statutes,  to  an  extent  which  enables  actions  of 
"  tort "  (p.  248)  to  be  brought  against  Government 
departments. 

Courts  of  British  India 

The  present  judicial  arrangements  in  British  India  depend 
largely  upon  the  scheme  of  an  Act  of  the  Imperial  Parlia- 
ment of  the  year  1861,  the  provisions  of  which  have  been 
incorporated  into  the  Government  of  India  Act  of  1915; 
but  they  have  also  been  affected  by  Indian  legislation. 

High  Courts 

There  are  High  Courts,  with,  substantially,  all  the  powers 
of  the  High  Court  in  England,  but  expressly  defined  by  the 
Letters  Patent  creating  them,  and  the  statutes  authorizing 
the  issue  of  such  Letters  Patent,  in  the  provinces  of  Bengal, 


282        THE    KING'S    COURTS    OF    JUSTICE 

Madras,  Bombay,  Agra,  and  in  Bihar  and  Orissa ;  and  His 
Majesty  is  empowered  to  extend  the  system  to  other  prov- 
inces, as  occasion  may  require.  These  High  Courts  are  pre- 
sided over  by  Chief  Justices  and  "  Puisne's,"  of  high  legal 
skill  and  experience,  appointed  directly  by  the  Crown  on  the 
advice  of  the  Secretary  of  State,  and  chosen  from  eminent 
advocates  or  officials  of  the  United  Kingdom  or  India  itself 
(p.  82).  The  law  which  these  Courts  administer  is  partly 
the  general  law  of  British  India,  as  contained  in  the  various 
Codes  which  have  been  issued  from  time  to  time  by  the  Vice- 
regal Government,  and  the  Acts  of  that  body  and  the  provin- 
cial legislatures,  as  interpreted  by  the  High  Courts  them- 
selves or  the  Judicial  Committee  of  the  Privy  Council,  to 
which  appeals  from  all  the  Indian  High  Courts  lie,  and  partly 
native  law  and  custom,  which  is  applicable  to  certain  classes 
of  the  population  in  certain  cases. 

Less  Advanced  Courts 

Courts  of  superior  jurisdiction,  of  a  less  advanced  type, 
presided  over  by  "  Chief  "  and  other  "  Judges,"  or  "  Judicial 
Commissioners,"  have  been  established  in  the  other  prov- 
inces. In  the  Pan  jab  and  Lower  Burma,  these  courts  are 
known  as  "  Chief  Courts  " ;  in  Oudh,  Upper  Burma,  Sindh, 
the  North-West  Frontier  Province,  British  Biluchistan, 
Coorg,  and  the  Central  Provinces,  as  "  Judicial  Commis- 
sioners' Courts."  The  prerogative  of  pardon  is  exercised 
by  the  Viceroy. 

Sessional,  Courts  and  District  Courts 

In  each  province,  too,  there  are  "  Sessional  Courts,"  hav- 
ing criminal  jurisdiction,  each  in  its  own  division  of  the 
province,  which  is  usually  co-terminous  with  a  "  district," 
but  subject  to  appeal  to  the  High  or  other  superior  courts; 
and  civil  jurisdiction  is  exercised  by  "  District  Courts,"  below 
which,  again,  are  subordinate  judges  and  munsifs.  The  Dis- 
trict Magistrate  has  also  certain  controlling  and  administra- 
tive powers  in  judicial  proceedings;  and  it  must  be  frankly 


INDIAN    COURTS  283 

admitted,  that  these  powers  violate  the  cardinal  rule  of 
British  constitutional  law,  which  forbids  the  union  in  the 
same  hands  of  judicial  and  administrative  duties.  But  the 
line  between  the  judicial  and  the  administrative  branches  of 
the  Indian  Civil  Service  is  gradually  becoming  clearer;  and 
it  will  probably  not  be  long  before  this  rule  is  carried  out  in 
India,  at  any  rate  in  the  more  advanced  provinces.  It  must 
also  be  admitted,  that,  strictly  speaking,  even  the  judges  of 
the  High  Courts  in  India  hold  their  offices  "  during  pleasure 
of  the  Crown."  But  there  is  an  express  provision  of  the 
Government  of  India  Act,  to  the  effect  that  no  alteration  may 
be  made  in  the  salaries  of  such  judges  during  their  tenure  of 
office;  and,  in  fact,  the  Indian  High  Court  judges  are  as 
secure  in  their  seats,  and,  therefore,  as  independent,  as  their 
colleagues  in  the  United  Kingdom. 


CHAPTER    XII 

THE    ESTABLISHED    CHURCHES 

Thk  official  connection  between  Church  and  State  is  now 
so  slight,  even  in  the  United  Kingdom  and  India,  while  in 
other  parts  of  the  British  Empire  it  is  practically  non-exist- 
ent, that  it  might  well  be  objected  that  ecclesiastical  institu- 
tions form  no  part  of  the  government  of  the  Empire.  But, 
while  it  is  impossible  to  maintain  this  objection  to  its  full 
extent,  it  is  even  less  formidable  than  it  appears  at  first  sight. 
For,  if  the  connection  between  Church  and  State  is  now 
slight,  the  very  contrary  was  once  the  rule ;  and  the  struggle 
which  led  to  the  present  state  of  things  has  left  deep  marks 
on  the  Constitution  and  growth  of  the  Empire. 

The  British  Church 

While  it  is  probably  true,  that  there  existed  some  kind 
of  ecclesiastical  arrangements  in  Britain  before  the  arrival 
of  the  English,  the  latter  were  at  that  time  pure  heathens, 
and  were  not  converted  to  Christianity  until  more  than  two 
centuries  afterwards.  In  the  meanwhile,  their  attitude 
towards  the  British  Church  had  been  one  of  hostility;  and 
it  is,  therefore,  unlikely  that,  even  after  their  conversion, 
they  would  co-operate  with,  or  adopt,  British  ecclesiastical 
institutions. 

The  Scheme  of  Archbishop  Theodore 

As  a  matter  of  fact,  though  the  evangelization  of  England 
was  commenced  by  St.  Augustine  in  Kent,  through  the  influ- 
ence of  the  Kentish  Court,  the  general  scheme  of  English 
Church  arrangements  was  laid  down  by  a  later  Archbishop 
of  Canterbury,  Theodore  of  Tarsus  in  Cilicia,  in  the  second 


THE    ROMAN    ORGANIZATION  285 

half  of  the  seventh  century  a.d.  He,  like  a  wise  statesman, 
having  the  support  of  the  various  Kings,  followed  the  lines 
of  the  ancient  local  arrangements,  planting  (or  recognizing) 
a  bishop  at  the  head  of  each  kingdom,  a  rural  dean  in  each 
hundred,  and  a  priest  in  each  township,  or,  as  he  called  it, 
being  a  Greek,  a  "  parish."  Of  course  this  process  took  some 
time ;  and  it  must  not  be  assumed  that  the  lay  townships  and 
the  ecclesiastical  parishes  were  absolutely  identical.  For  ex- 
ample, the  ancient  townships  of  the  north,  where  the  popu- 
lation was  scanty,  were  often  grouped  into  parishes ;  while, 
on  the  other  hand,  in  the  south,  where  population  was  thicker, 
a  single  township  might  be  divided  into  two  or  more  parishes. 

Tithes 

Moreover,  the  systematic  arrangement  by  which  now,  for 
many  centuries,  the  tithes,  or  ecclesiastical  dues  from  the 
produce  of  the  soil  of  each  parish,  have  been  allotted  pri- 
marily to  the  spiritual  needs  of  that  parish,  was  not  at  first 
observed,  even  after  the  payment  of  tithes  had  been  recog- 
nized as  a  moral  and  even  a  legal  duty.  Still,  the  foundations 
of  the  historic  settlement  were  early  laid,  and  have  persisted 
with  great  tenacity ;  the  most  fundamental  changes  being 
the  early  establishment  of  archdeaconries,  as  the  larger 
kingdoms  of  the  Heptarchy  became  subdivided  into  shires  or 
counties  (p.  305),  and  the  gradual  increase  in  the  number  of 
the  bishoprics,  first  in  the  eleventh  and  twelfth  centuries, 
later  at  the  Reformation,  finally  in  the  nineteenth  century. 

The  Roman  "  Obedience  " 

As  might  have  been  expected  from  the  fact  that  the  spread 
of  Christianity  in  England  was  largely  due  to  royal  influ- 
ence, the  higher  clergy,  whose  talents  and  education  made 
them  conspicuous,  took  a  great  share  in  the  government,  not 
merely  of  the  Church,  if  that  could  be  said  to  exist  apart  from 
the  State,  but  of  the  country  as  a  whole.  This  was  espe- 
cially the  case  after  the  famous  Council  of  Whitby  in 
A.D.   664<,  when  it  was  definitely  decided  to  adhere  to  the 


286  THE    ESTABLISHED    CHURCHES 

Roman  "  obedience,"  or  scheme  of  worship  and  ecclesiasti- 
cal arrangements,  in  opposition  to  the  ancient  tribal  scheme 
of  the  British  Church;  for  this  decision  naturally  involved 
a  close  connection  with,  and  even  deference  to,  the  occu- 
pants of  the  Papal  See,  who  took  care  to  send  a  succession 
of  able  prelates  to  complete  the  establishment  of  the  infant 
Church. 

Identity  of  Church  and  State 

Thus  we  find  that,  in  each  lay  institution  the  Church  offi- 
cial formed  a  part  —  the  bishop  or  bishops  in  the  Witan 
(p.  2),  the  bishop  or  archdeacon  in  the  shire  court,  the 
rural  dean  in  the  hundred  court,  and  the  parish  priest  in  the 
township  moot ;  while  lay  and  religious  matters  were  alike 
discussed  in  all,  though,  undoubtedly,  even  before  the  Nor- 
man Conquest,  synods  or  councils  were  held  for  purely  eccle- 
siastical purposes. 

Beginnings  of  Separation 

It  is  a  fact  not  so  widely  known  as  it  might  be,  that  the 
first  steps  in  the  severance  of  this  intimate  union  between 
Church  and  State  came  from  the  Church  itself.  A  series  of 
vigorous  and  ambitious  Popes  in  the  tenth  and  eleventh  cen- 
turies disliked  the  mingling  of  clergy  and  laity,  and  desired 
to  make  of  the  former  a  caste  apart,  devoted  exclusively  to 
the  interests  of  the  Church,  and  indifferent  to  national  inter- 
ests as  such. 

Celibacy  of  the  Clergy 

One  of  the  most  striking  marks  of  this  policy  was  the  en- 
forcement of  celibacy,  or  abstention  from  marriage,  on  the 
parochial  clergy,  who,  as  distinct  from  the  "  regular  "  or 
monastic  clergy  (who  lived  in  abbeys,  priories,  convents,  and 
other  religious  houses),  had  not  previously  been  subject  to  it. 
The  enforcement  of  this  rule  naturally  led  to  the  appearance 
of  a  marked  distinction  between  the  life  of  the  ordinary 
parish  priest  and  that  of  his  flock.  Previously,  the  former 
had  been  a  member  of  the  agricultural  community  (p.  306), 


QUARRELS    OF    CHURCH    AND    STATE     287 

taking  his  tithe  "  as  the  plough  traverseth  the  tenth  acre." 
Afterwards,  he  became  a  member  of  a  different  caste,  visit- 
ing the  barns  and  byres  of  his  parishioners  to  collect  his 
tithes. 

Another  result  of  the  new  policy  was,  the  withdrawal  of 
ecclesiastical  matters  from  discussion  in  assemblies  at  which 
laymen  were  present ;  and,  when  William  of  Normandy,  whose 
expedition  had  been  considerably  assisted  by  the  reigning 
Pope,  had  succeeded  in  his  aim,  he  fulfilled  his  pledge  by  issu- 
ing a  general  ordinance,  to  the  effect  that  no  religious  mat- 
ters should  henceforth  be  discussed  in  the  hundred  court  (the 
most  important  unit  of  local  government  at  the  time),  or  be 
subjected  to  the  authority  of  laymen. 

Separation  of  Courts 

The  policy  thus  adopted  was  rapidly  and  effectively  com- 
pleted by  the  able  Norman  prelates  of  the  eleventh  and  early 
twelfth  centuries,  who  built  up,  jilongside  the  lay  institutions 
of  the  State,  a  set  of  corresponding  ecclesiastical  courts,  of 
archdeacon,  bishop,  and  archbishop ;  though  the  courts  or 
moots  of  the  hundred  and  township,  which  were  falling  into 
decay,  appear  to  have  had  no  ecclesiastical  parallels,  except 
that  the  latter  may  perhaps  be  traced  in  the  meetings  later 
held  in  the  "  vestry  "  or  robing  room  of  the  parish  church. 

It  is  not  to  be  supposed,  however,  that  a  ruler  of  the  Con- 
queror's ability  was  blind  to  the  dangers  which  this  policy 
produced. 

William's  Rules 

Though  he  kept  his  bargain  with  the  Pope,  William  laid 
down  certain  fundamental  rules,  to  which  his  successors  tena- 
ciously clung,  to  avert  the  evils  of  divided  authority.  First 
of  all,  he  reserved  to  himself  the  right  formally  to  recognize 
in  England  the  title  of  a  newly  elected  Pope,  a  right  which 
proved  very  useful  in  the  case  of  disputed  Papal  elections. 
Secondly,  he  refused  to  permit  a  Papal  legate,  or  special 
messenger  wielding  Papal  authority,  or  any  Papal  Bull  or 


288  THE    ESTABLISHED    CHURCHES 

sovereign  enactment,  to  enter  the  country  without  his  ex- 
press leave  —  thus  aiming  to  prevent  interference  with  the 
internal  affairs  of  the  English  Church.  Thirdly,  he  forbade 
the  excommunication,  or  exclusion  from  religious  rites,  of 
any  of  his  "  tenants  in  chief,"  or  immediate  vassals,  without 
his  consent.  Finally,  he  refused  to  recognize  the  validity  of 
any  decree  of  an  ecclesiastical  council  or  synod  of  bishops, 
until  formally  confirmed  by  him. 

Investitures 

Another  question,  however,  speedily  arose  for  settlement, 
in  the  famous  contest  about  "  investitures,"  which  agitated 
the  whole  of  Western  Europe  in  the  twelfth  century.  It  was 
part  of  the  new  Papal  policy  to  keep  the  appointment  of 
archbishops  and  bishops  entirely  in  the  hands  of  the  Pope. 
But,  as  we  have  seen  (p.  121),  in  England  the  bishops  took 
part  in  the  national  councils,  even  before  the  Conquest;  and 
the  practice  was  afterwards  continued  in  the  Councils  of  the 
Magnates  held  by  the  Norman  Kings  (p.  25).  Moreover, 
the  ancient  bishoprics  had  been  endowed  with  vast  grants 
of  jurisdiction,  and  even  of  land,  by  the  English  and  Norman 
Kings,  which  made  their  holders  some  of  the  greatest  of  the 
"  tenants  in  chief."  Thus  the  Papal  claim  to  nominate 
prelates  in  England,  and  to  invest  them  with  their  offices 
without  royal  approval,  was  virtually  a  claim  to  thrust  upon 
the  King  counsellors  of  whom  he  might  not  approve;  whilst 
the  further  claim  that  the  estates  of  the  dioceses  were  held 
by  "  frankalmoign,"  i.e.  ownership  free  of  all  military  duties, 
cut  at  the  root  of  the  feudal  system  of  military  service.  The 
contest  was  bitter  and  prolonged ;  but  at  last  a  compromise 
was  effected,  whereby  a  newly  appointed  prelate  should  first 
do  homage  to  the  King  for  his  estates,  thus  admitting  his 
liability  to  military  service  (not,  of  course,  necessarily  per- 
formed In  person),  and  to  "  suit  of  court,"  i.e.  attendance  at 
the  Council,  and  subsequently  be  consecrated  by  ecclesiasti- 
cal hands,  and  receive  the  symbols  of  spiritual  authority,  the 
ring  and  pastoral  staff,  from  the  Pope. 


HENRY    II    AND    BECKET  289 

Election  of  Prelates 

But  this  compromise,  which  was  effected  in  England  at  the 
beginning  of  the  twelfth  century,  between  Anselm  and 
Henry  I,  left  unsettled  the  thorny  question :  With  whom  did 
the  real  choice  of  a  new  prelate  lie?  As  a  matter  of  fact,  in 
ancient  England,  the  prelates  had  been  elected  or,  at  least, 
accepted,  probably  on  the  nomination  of  the  King,  in  the 
Witans  (p.  2)  of  which  they  formed  part.  The  greater 
strength  of  the  first  Norman  Kings  probably  enabled  them 
to  make  their  choice  prevail.  But  the  religious  houses,  or 
monasteries,  which  were  rapidly  growing  in  power  and 
splendour,  and  some  of  whose  abbots  or  heads  sat  in  the 
Great  Council  (p.  25),  elected  their  own  chiefs;  and  the  ca- 
thedral chapters,  or  resident  clergy,  claimed  a  similar  right 
with  regard  to  their  bishops.  Finally,  the  new  Papal  policy, 
as  has  been  said,  aimed  at  the  appointment  of  bishops,  as 
well  as  other  ecclesiastical  patronage. 

Henry  II  and  Becket 

The  question  came  to  a  head  in  the  famous  quarrel  be- 
tween Henry  II  and  Becket  in  1164.  Becket  was  a  very  dif- 
ferent person  from  Anselm;  but  he  had  to  consent  to  a  com- 
promise which  declared  indeed  the  right  of  the  cathedral 
chapter  to  elect  a  new  prelate,  but  only  in  the  King's  Chapel, 
and,  therefore,  under  royal  influence.  Moreover,  the  rule 
agreed  to  by  Anselm,  that  the  new  prelate  was  to  do  homage 
to  the  King  for  his  estates  before  consecration,  was  con- 
firmed. Thus  the  choice  of  bishops,  from  that  time  till  the 
Reformation,  practically  depended  on  the  character  of  the 
King.  If  he  were  a  strong  man,  the  choice  was  virtually  his. 
If,  like  John  or  Henry  III,  he  was  weak,  the  Pope  probably 
nominated  a  candidate  whom  the  chapter  elected. 

The  Church  Courts  and  the  Clergy 

But  another  very  important  question  arose  between  Henry 
II  and  Becket.    Despite  the  fact  that  he  had  been  the  King's 


290  THE    ESTABLISHED    CHURCHES 

Chancellor,  Becket  cordially  disliked  the  new  system  of  strong 
royal  courts  of  justice  which  grew  up  in  Henry's  reign 
(p.  10)  ;  and  particularly  he  disliked  the  claim  of  these 
courts  to  exercise  criminal  jurisdiction  over  the  clergy.  The 
clergy,  he  claimed,  should  be  tried  in  the  courts  of  the  Church 
(p.  287),  according  to  the  rules  of  the  Canon  Law,  which 
had  been  made  by  Church  Councils  and  Popes  for  the  gov- 
ernment of  the  Church.  And  when  Henry  said  that,  whilst 
not  denying  the  right  of  the  Church  to  punish  its  own  clergy, 
he  should  insist  on  punishing  them  also  for  offences  against 
the  law  of  the  land,  Becket  made  the  specious  reply,  that  no 
one  ought  to  be  tried  twice  for  the  same  offence.  Henry, 
however,  who  knew  that  some  crimes  at  least  could  not  be 
adequately  punished  by  the  Church  courts  (for  instance 
capital  crimes),  and,  moreover,  shared  the  very  common  sus- 
picion that  clerical  offenders  were  not  likely  to  be  strictly 
dealt  with  by  the  antiquated  methods  of  procedure  of  the 
Church  Courts,  stood  firm ;  and  the  archbishop  was  com- 
pelled, by  a  famous  document  known  as  the  "  Constitutions 
of  Clarendon,"  in  1164,  to  admit  the  responsibility  of  the 
clergy  to  the  lay  courts  of  the  King. 

"  Benefit  of  Clergy  " 

But  the  shock  caused  by  the  murder  of  Becket,  which 
soon  followed,  compelled  the  King's  Courts  to  adopt  a  hol- 
low compromise,  which,  while  nominally  admitting  the  lia- 
bility of  the  "  clerk,"  or  person  in  Holy  Orders,  to  be  tried 
in  the  King's  Court,  by  the  new  method  of  the  jury  (p.  11), 
enabled  him  to  "  plead  his  clergy,"  and  claim  to  be  handed 
over  to  the  Church  tribunal,  which,  in  fact,  hardly  made  a 
pretence  of  trying  him.  Thus,  from  the  twelfth  century,  to 
the  Reformation,  when  the  "  benefit  of  clergy  "  was  severely 
cut  down,  a  "  clerk  "  was  practically  free  to  commit  as  many 
crimes  as  he  liked ;  and  not  merely  a  clerk  in  Holy  Orders 
strictly,  but  any  of  the  petty  officers  of  the  Church,  and, 
indeed,  any  one  with  sufficient  ability  to  translate  a  short 
passage  from  the  Psalter,  which  was  always  the  same,  and 


CLERICAL    TAXATION  291 

without   a   knowledge   of   which,    therefore,   no    gentleman's 
education  was  complete. 

Liability  of  Clergy  to  Taxation 

One  other  first-class  question  between  Church  and  State 
was  settled  before  the  end  of  the  thirteenth  century.  As  it 
became  clear  that  a  regular  system  of  State  taxation  would 
be  one  of  the  unpleasant  features  of  life,  the  clergy,  who 
held  a  large  proportion  of  the  wealth  of  the  kingdom,  made 
strenuous  efforts  to  escape  it,  which  the  Kings,  very  nat- 
urally, resisted  as  strenuously.  The  clergy  had  considerable 
excuse  for  their  resistance ;  for  they  were  taxed,  not  only  by 
the  King,  but  by  the  Pope,  whose  needs  were,  in  the  thir- 
teenth century,  particularly  pressing,  owing  to  the  Conti- 
nental wars  in  which  the  Papacy  was  involved. 

"  Convocations  " 

The  struggle  was  acute  during  all  the  long  and  weak 
reign  of  Henry  III;  and  it  probably  had  a  good  deal  to  do 
with  the  growth  of  the  Convocations,  or  Parliaments  of  the 
Church,  which  may  have  acted,  in  some  degree,  as  models 
for  the  lay  Parliament,  and  which  comprised,  not  merely  the 
bishops,  sitting  together  as  an  "  Upper  House,"  but  the 
priors  or  deans  of  the  cathedral  chapters,  the  archdeacons, 
and  "  proctors,"  or  agents  (procuratores)  of  the  ordinary 
beneficed  clery,  sitting  as  a  "  Lower  House."  The  curious 
thing  is,  that  there  was  not,  and  is  not  to  this  day,  a  single 
Convocation  for  the  whole  Church  of  England,  but  two  Con- 
vocations, one  for  the  province  of  Canterbury,  and  another, 
much  smaller,  for  the  province  of  York;  each  divided  into 
two  Houses.^  In  fact,  though  the  primacy  of  Canterbury 
has  long  been  marked  in  many  ways,  and  recognized  by  stat- 
ute, he  is  not  the  superior  or  overlord  of  his  brother  of  York ; 
for  the  latter  is  "  Primate  of  England,"  though  the  former 
is  "  Primate  of  All  England." 

*  In  the  Convocation  of  York,  owing  to  the  small  number  of  the  dioceses, 
each  archdeaconry  is  represented  by  two  proctors. 


292  THE    ESTABLISHED    CHURCHES 

The  Bull  "  Clericis  Laicos  " 

To  return,  however,  to  the  great  struggle  between  the 
State  and  the  Church  on  the  matter  of  taxation.  Edward 
I,  when  he  was  framing  his  Great  Parliament  (p.  25),  was 
quite  aware  that  a  crisis  was  impending,  and  took  his  meas- 
ures accordingly,  by  virtually  incorporating,  as  we  have 
seen  (pp.  118,  119),  the  Church  Convocations  as  a  third 
House  of  Parliament.  His  foresight  was  justified;  for,  in 
the  very  next  year  after  the  Parliament  of  1295,  his  vig- 
orous opponent.  Pope  Boniface  VIII,  dropped  a  bombshell 
into  the  Courts  of  Christendom,  by  publishing  his  famous 
Bull  Clericis  Laicos,  so  called  from  its  opening  words,  by 
which  he  roundly  forbade  the  clergy  everywhere  to  pay  taxes 
to  the  State.  The  struggle  which  followed  was  sharp,  but 
decisive,  at  any  rate  in  England.  Edward  I,  wise  and  pious 
as  he  was,  would  stand  no  nonsense;  and,  on  the  refusal  of 
the  Archbishop,  in  the  name  of  the  Church,  to  vote  taxes, 
he  promptly  outlawed  the  whole  of  the  clergy,  i.e.  withdrew 
from  them  the  protection  of  the  law,  both  criminal  and  civil, 
thus  leaving  the  vast  wealth  of  the  Church,  and  the  persons 
of  its  clergy,  open  to  attack  by  any  plunderer.  There  was 
a  grim  irony  in  this  procedure ;  for  it  was  the  exact  counter- 
part of  the  clerical  process  of  excommunication,  by  threat  of 
which  the  Pope's  predecessors  had  extorted  submission  from 
the  vicious  John,  and  the  feeble  Henry  III.  And  it  was 
equally  effectual;  for,  after  a  brief  attempt  at  a  compro- 
mise, the  Archbishop  gave  way;  and  the  practice  before  de- 
scribed (p.  119)  was  arrived  at,  whereby  the  clerical  rep- 
resentatives attended  at  the  opening  of  each  Parliament, 
under  the  "  Prasmunientes  "  clause  in  the  bishop's  writs,  but 
retired  to  their  Convocations  immediately,  merely  going 
through  the  formality  of  accepting  the  Commons'  vote  of 
taxes,  and  imposing  it  on  their  own  body.  Perhaps,  in 
spite  of  a  show  of  resistance,  the  clergy  were  not  really  very 
sorry  to  adopt  an  attitude  which  enabled  them  to  allege  the 
King's  demands   as  an  excuse   for  resisting  the  still  more 


CHANGES    AT    THE    REFORMATION        293 

searching  levies  of  Papal  taxation.  In  the  latter  attempt, 
they  had  the  secret  or  avowed  sympathy  of  the  King  and 
Parliament;  and  it  was  probably  that  sympathy  which  had 
a  good  deal  to  do  with  the  ease  with  which  the  constitutional 
changes  of  the  Reformation  were  carried  through. 

Reformation  Changes:    Ecclesiastical  Jurisdiction 

These  changes  may  be  briefly  summed  up  under  five  heads. 
(1)  First  in  order  came  the  question  of  ecclesiastical  juris- 
diction, and  especially  of  appeals  to  the  Papal  Curia,  or 
Court  at  Rome.  It  must  be  carefully  remembered  that 
never,  until  the  Reformation,  had  any  English  King,  or  other 
authority,  seriously  questioned  the  right  of  the  Church 
courts  to  adjudicate,  according  to  Canon  Law  and  pro- 
cedure, on  many  subjects,  some  of  which,  such  as  marriage 
law  and  defamation,  we  should  consider  more  lay  than  cleri- 
cal. There  were  disputes  about  the  boundary  line  between 
State  and  Church  courts;  and  in  some  subjects,  e.g.  title  to 
land  (including  presentations  to  livings),  the  State  courts 
kept  a  tight  hand  by  writs  of  "Prohibition"  (p.  265)  is- 
sued to  the  clerical  judges.  Still,  the  jurisdiction  of  the 
"  Courts  Christian  "  was  admitted,  and  even  the  ultimate 
right  of  appeal  to  Rome,  after  the  due  order  of  appeal, 
from  archdeacon  to  bishop,  and  bishop  to  archbishop,  had 
been  observed  in  England.  But,  for  a  long  time  before  the 
Reformation,  Parliament  had  passed  Acts  (known  as  Stat- 
utes of  "  Pragmunire  ")  against  irregular  interference  with 
proceedings  in  the  Church  courts  by  the  Papal  officials,  who 
encouraged  "  evocation,"  i.e.  carrying  off  of  cases  at  once 
to  Rome,  and  "  delegation,"  i.e.  trial  of  cases  in  England 
by  officials  sent  from  Rome.  At  the  Reformation,  Parlia- 
ment went  much  further,  and,  by  the  Acts  of  Appeals  and 
Submission  (in  1532  and  1533)  entirely  forbade  all  appeals 
to  Rome,  and  substituted  a  final  appeal  from  the  archbishops' 
courts  to  the  King  in  Chancery,  who  was  empowered  to  ap- 
point delegates  to  hear  such  appeals. 


294  THE    ESTABLISHED    CHURCHES 

Canon  Law 

Parliament  attempted  to  deal  also  with  the  vast  body  of 
Canon  Law  (p.  290)  which  the  Church  Courts  followed;  but 
its  action  was,  in  this  respect,  not  very  effective.  It  em- 
powered the  King  to  appoint  a  commission  of  thirty-two 
persons  to  examine  the  existing  Canons,  and  recommend 
for  abolition  such  as  they  should  deem  unworthy  of  observ- 
ance in  a  reformed  Church.  Meanwhile,  the  existing  Canons 
were  to  be  observed,  except  so  far  as  they  were  repugnant 
to  the  law  of  the  land,  or  hurtful  to  the  King's  authority. 
The  contemplated  commission  was  never  appointed ;  and 
there,  to  the  present  day,  rests  the  authority  of  the  Canon 
Law  as  it  stood  in  1533.  It  is  binding  alike  on  clergy  and 
laity,  in  its  proper  sphere,  subject  to  the  alterations  made 
in  the  law  by  Act  of  Parliament  or  judicial  decision. 

Dispensations 

(2)  The  closely  connected  subject  of  the  prerogative  or 
special  authority  claimed  by  the  Popes,  of  "  dispensing " 
with  the  ordinary  Law  of  the  Church,  was  also  dealt  with. 
It  will  be  remembered,  that  this  had  played  a  very  great  part 
in  the  famous  defiance  by  Luther  of  the  Papal  authority; 
and  we  have  seen  that  a  similar  claim  in  secular  matters  was 
afterwards  put  forward  by  the  Stuart  Kings  (p.  194).  The 
Reformation  statutes,  of  course,  entirely  abolished  it,  so  far 
as  the  exercise  by  the  Pope  was  concerned ;  but  they  allowed 
it  so  far  that,  by  the  Act  of  Dispensations  of  1533,  the 
Archbishop  of  Canterbury  may  grant,  but  only  with  the  ap- 
proval of  the  King  in  Council  in  new  cases,  such  licences  and 
dispensations  as  shall  be  "  lawful  and  necessary."  It  is  un- 
der this  power  that  the  Archbishop's  "  special  licence  "  to 
marry  is  granted. 

Papal  Taxation 

(3)  The  Reformation  definitely  put  a  stop  to  the  levy 
of  Papal  taxation,  in  any  form,  by  the  abolition  of  Peter's 


CHANGES    AT    THE    REFORMATION        295 

Pence,  the  ancient  "  God's  penny  "  or  hearth-tax,  which  had 
been  paid  to  Rome  from  the  earhest  days  of  the  Church  es- 
tablishment, as  well  as  of  "  annates  "  or  first-fruits  (the 
first  year's  profits  of  newly-filled  benefices),  and  tenths  (the 
annual  tax  on  livings  for  which  the  irregular  Papal  taxation 
had  been  commuted).  The  special  tribute  promised  by  John 
in  his  disgraceful  surrender  of  the  Kingdom  had  long  be- 
fore been  repudiated;  but  the  first-fruits  and  tenths  were 
not  extinguished,  but  transferred  to  the  Crown,  by  whom, 
in  the  later  reign  of  Queen  Anne,  they  were  set  aside,  under 
the  name  of  "  Queen  Anne's  Bounty,"  as  a  provision  for  the 
augmentation  of  poor  livings. 

Powers  of  Convocation 

(4)  The  position  of  the  Convocations  was  definitely  set- 
tled by  the  Act  for  the  Submission  of  the  Clergy  in  1533, 
and  has  remained  since  unaltered.  The  policy  of  the  Con- 
queror was  taken  a  good  deal  further;  and  the  Convocations 
were  forbidden  to  meet  without  the  King's  licence,  and,  even 
when  licensed  to  meet,  to  discuss  any  proposed  new  Canons 
without  the  King's  express  approval.  Thus,  no  Convoca- 
tion can  be  called  without  the  issue  of  the  King's  writ  to 
the  archbishop ;  and  "  letters  of  business  "  are  further  re- 
quired before  any  new  Canon  can  even  be  discussed.  It  was, 
therefore,  a  simple  matter  for  the  Crown,  on  the  outbreak 
of  the  "  Bangorian  "  ^  controversy  in  1717,  to  withhold  the 
necessary  writ,  and  thus  virtually  to  suspend  the  existence 
of  the  Convocations  until  1850,  since  when  they  have  again 
regularly  met.  Moreover,  it  was  laid  down  by  Lord  Hard- 
wicke,  in  the  eighteenth  century,  that  Canons  enacted  by 
Convocation  since  the  Act  of  Submission,  even  with  the 
King's  licence,  though  they  bind  the  clergy  by  virtue  of  their 
oaths  of  canonical  obedience,  do  not  bind  the  laity,  because 
they  are  not  sanctioned  by  Parliament.  There  is,  how- 
ever, nothing  to  prevent  Convocation  addressing  the  Crown, 

'  So  called  because  sentiments  attributed  to  Bishop  Hoadley,  of  Bangor, 
were  made  the  ground  of  a  quarrel  between  the  two  Houses  of  Convocation, 


296  THE    ESTABLISHED    CHURCHES 

praying  It  to  take  into  consideration  any  subject  affecting 
the  welfare  of  the  Church,  or  to  prevent  Parliament  enact- 
ing a  new  Canon  by  statute,  as  has  been  done  on  more  than 
one  occasion. 

Crown's  Authority  in  Ritual 

But  the  influence  of  the  Convocations,  as  well  as  of  the 
Church  courts,  was  also  gravely  affected  by  the  Acts  of  Su- 
premacy passed  at  the  Reformation  and  afterwards,  by  vir- 
tue of  which  the  supreme  authority  of  the  Crown  over  the 
Church,  not  only  in  matters  of  government  but  of  ritual, 
was  asserted.  It  was  under  these  statutes  that  Henry  VIII 
and  Elizabeth  instituted  the  famous  Courts  of  High  Com- 
mission, which,  though  partly  composed  of  bishops,  com- 
pletely put  into  the  shade  the  ordinary  Church  courts,  espe- 
cially in  all  matters  affecting  discipline. 

Appointment  of  Bishops  and  Deans 

(5)  Another  important  step  taken  at  the  Reformation 
also  carried  further  the  older  policy  of  the  State  on  the  sub- 
ject of  the  appointment  of  prelates  and  other  great  Church 
officers.  This  step  was  taken  by  the  (second)  Act  of  An- 
nates in  1533;  and  it  established  also  a  permanent  settle- 
ment, which  remains  in  present  force.  On  the  occurrence 
of  a  vacancy  in  a  bishopric,  the  Crown  sends  to  the  chapter 
of  the  cathedral  a  conge  d'elire,  or  licence  to  elect  a  new 
bishop.  But  this  apparent  respect  for  freedom  of  election 
is  but  a  thin  disguise  for  a  much  more  important  document, 
viz.  a  "  letter  missive,"  which  contains  the  name  of  the  per- 
son selected  by  the  King  (now  acting  on  the  advice  of  the 
Cabinet)  for  election.  It  is  true  that  a  second  name  is 
added,  to  keep  up  the  pretence  of  a  free  choice;  but,  less 
than  a  century  ago,  it  was  given  as  a  solemn  opinion  by  the 
Law  Officers  of  the  Crown  (pp.  224,  225),  that  this  was 
merely  a  form,  and  that  any  attempt  to  act  upon  it  would 
bring  down  upon  the  chapter  the  penalties  of  a  "  Prsemu- 


APPOINTMENT    OF    BISHOPS  297 

nire  "  (p.  293).  If  the  chapter  does  not  elect,  within  twelve 
days,  the  person  named  in  the  "  letter  missive,"  the  King  ap- 
points to  the  bishopric  by  Letters  Patent,  as  he  does  also  if 
there  is  no  cathedral  chapter  (which  sometimes  happens  in 
the  case  of  new  bishoprics)  and  as  he  does  in  the  case  of  new 
deans.  Suffragan  and  assistant  or  "coadjutor"  bishops 
are  appointed  by  the  Crown,  usually  on  the  request  of  their 
diocesan  bishops ;  canons  or  members  of  the  cathedral  chap- 
ters are  elected  or  appointed  in  various  ways  —  sometimes 
by  the  Crown,  sometimes  by  their  bishop,  sometimes  by  vote 
of  the  chapter.  Archdeacons  are  usually  appointed  by  their 
bishops.  Each  diocesan  bishop  does  homage  to  the  King  for 
his  "  temporalities,"  i.e.  his  endowments  and  temporal  pow- 
ers (if  any),  and  takes  the  oath  of  fealty.  He  may  be 
"  confirmed  "  in  his  election  by  the  archbishop,  and  is  con- 
secrated by  him ;  but  he  can  take  no  recognition  of  any  kind 
from  Rome. 

Uniformity  of  Worship 

(6)  Finally,  the  Reformation  brought  into  prominence 
the  subject  of  "  uniformity  of  worship."  Though  the  King 
and  Parliament  were  strikingly  successful  in  maintaining 
the  continuity  of  the  Established  Church  (it  seems  to  the 
writer  simply  unhistorical  to  speak  of  the  present  Estab- 
lishment as  "  created,"  or  even  "  set  up  "  by  the  Reforma- 
tion), yet  they  could  not  prevent  a  vigorous  outburst  of 
Dissent  in  doctrine,  and  Non-conformity  in  worship,  which 
refused  to  accept  the  official  standards.  An  early  attempt 
to  discourage  the  former  was  the  Act  of  the  Six  Articles, 
which  imposed  heavy  penalties  on  any  "  denial  "  of  the  fun- 
damental doctrines  of  the  Church;  but  the  policy  of  the 
"  Acts  of  Uniformity  "  which  began  under  Edward  VI,  and 
were  re-issued  and  amended  under  Elizabeth  and  Charles 
II,  while  definitely  Protestant  in  doctrine,  aim  chiefly  at  se- 
curing, by  means  of  authoritative  "  liturgies,"  or  forms  of 
worship  (the  Book  of  Common  Prayer),  a  uniform  and  com- 
prehensive observance  of  public  worship  conducted  by  the 


298  THE    ESTABLISHED    CHURCHES 

Established  Church.  This  policy,  vigorously  upheld  by  the 
Courts  of  High  Commission  (p.  296),  and  intensified  by 
the  bigotry  of  the  first  Stuart  Kings  of  England,  who  made 
a  firm  alliance  with  the  bishops,  had  much  to  do  with  precipi- 
tating the  Civil  War  (which,  for  a  time,  completely  "  dis- 
established "  the  Anglican  Church),  and  contributed  greatly, 
by  its  harshness,  to  drive  out  of  the  country  the  early  Puri- 
tan settlers,  such  as  the  pilgrims  of  the  Mai/flower,  who 
founded  the  New  England  States  of  America.  Thus  it  may 
be  said  to  have  indirectly  contributed  to  the  building  up  of 
the  Empire. 

Toleration 

This  exclusive  policy  was  revived,  after  the  Restoration, 
in  all  its  intensity ;  but  the  extreme  policy  of  James  H,  who 
attempted  to  force  Catholicism  on  an  unwilling  nation, 
caused  a  union  between  the  Established  Church  and  the 
Protestant  Dissenters  and  Nonconformists,  in  pursuance  of 
which,  at  the  Revolution  of  1688,  a  Toleration  Act  was 
passed,  by  virtue  whereof  obedience  to  the  Act  of  Uniformity 
was  excused,  and,  gradually,  the  severe  list  of  "  disabilities  " 
which,  in  the  seventeenth  century,  had  been  imposed  on 
Protestant  and  Catholic  Dissenters,  was  abolished. 

Decay  of  the  Church  Courts 

Meanwhile,  the  blow  which  the  Church  courts  had  suf- 
fered in  the  Civil  War  had  deprived  them  of  much  of  their 
remaining  activity,  which  had  passed  to  the  King's  Courts ; 
and  the  latter  ultimately  adopted  a  policy  of  refusing  to  al- 
low the  Church  courts  to  deal  with  any  cases  for  which  a 
remedy  lay  in  their  own  tribunals.  By  this  means,  such 
actions  as  those  for  breach  of  promise  of  marriage,  slander, 
adultery,  and  the  like,  were  taken  away  from  the  Church 
courts,  which  had  always  suffered  from  considerable  diffi- 
culty in  enforcing  their  decrees.  Then  came  the  Acts  which, 
at  the  beginning  of  the  nineteenth  century,  broke  down  the 
Church's   monopoly   in  the   matter  of  celebration   of  mar- 


THE    CHURCH    COURTS  299 

riages,  the  Tithe  Commutation  Acts,  the  Church  Discipline 
Acts,  which  gave  the  ultimate  appeal  to  the  Judicial  Com- 
mittee, the  abolition  of  compulsory  Church  rates,  and, 
finally,  the  Acts  of  the  year  1857,  which  transferred  the 
jurisdiction  of  the  Church  courts  in  probate  and  matri- 
monial cases  (p.  264)  to  the  new  Courts  of  Probate  and 
Divorce. 

Recent  Revival 

A  slight  revival  of  the  bishops'  ("  consistory  ")  and  the 
archbishops'  ("  provincial ")  courts  has,  however,  been 
brought  about  by  the  Church  Discipline  and  Public  Wor- 
ship Regulation  Acts.  Under  the  former,  certain  offences 
of  the  clergy  against  morals  and  discipline  are  triable  by 
the  bishop's  chancellor,  with  "  assessors  "  if  demanded,  in 
the  consistory  court,  with  option  of  appeal  either  to  the 
provincial  court  of  the  archbishop,  or  the  Judicial  Commit- 
tee sitting  with  episcopal  assessors.  Under  the  former  stat- 
utes, questions  of  ritual  may  be  tried  by  the  bishop  with  the 
consent  of  the  parties ;  if  this  is  withheld,  the  case  goes  to 
the  provincial  court,  with  ultimate  appeal  to  the  Judicial 
Committee.  But,  although  the  Church  courts  have  still  a 
theoretical  power  to  excommunicate,  and  even  imprison,  laity 
as  well  as  clergy  for  certain  ecclesiastical  offences,  this  power 
is,  in  substance,  never  exercised ;  one  of  the  chief  reasons  for 
its  decay  being  the  fact  that  the  Church  courts  never  adopted 
the  institution  of  the  jury. 

The  Modern  Establishment 

On  the  other  hand,  it  would  be  a  great  mistake  to  sup- 
pose that  the  Church  of  England  has  ceased  to  receive  pub- 
lic official  support.  Indeed  the  Tithe  Commutation  Acts, 
by  making  the  payment  of  tithe  (where  it  has  not  been  "  re- 
deemed ")  legally  recoverable  in  the  King's  Courts  in  a  con- 
venient form,  may  be  said  to  have  strengthened  a  precarious 
form  of  income;  whilst  the  majority  of  the  English  diocesan 
bishops,  at  any  rate,  still  occupy  seats  in  the  House  of  Lords, 


300  THE    ESTABLISHED    CHURCHES 

and  are  present  at  all  State  ceremonies,  such  as  coronations 
and  openings  of  Parliament.  Moreover,  the  legal  right  of 
private  patronage,  or  presentation  to  livings  in  the  Estab- 
lished Church,  still  exists;  though  its  exercise  has  recently 
beeQ  severely  restricted. 

Established  Chuech  of  Scotland 

The  State  Church  of  Scotland  was,  until  the  Reforma- 
tion, very  similar  to,  though,  of  course,  absolutely  independ- 
ent of,  the  Church  of  England,  But  whereas  the  English 
Reformation  left  the  episcopal  government  of  the  Eng- 
lish Church  remaining,  though  (as  has  been  seen)  restricted, 
the  Scots  adopted  the  form  of  government  kno\Mi  as  Pres- 
byterianism,  by  means  of  which,  through  a  successive  group- 
ing of  kirk  sessions  into  presbyteries,  presbyteries  into 
synods,  and  synods  into  a  General  Assembly,  complete  self- 
government  on  democratic  lines  was  secured,  and  continued 
until  the  Restoration  of  Charles  H.  The  royal  advisers 
then  made  a  desperate  attempt  to  restore  episcopal  institu- 
tions in  Scotland;  but  this  step,  after  provoking  intense 
and  violent  reaction,  was  reversed  at  the  Revolution,  since 
which  time,  the  only  official  connection  of  State  and  Church 
in  Scotland  has  been  the  annual  appointment  of  a  royal 
High  Commissioner  to  receive  and  welcome  the  General  As- 
sembly in  Edinburgh,  which  is  presided  over  by  an  elected 
Moderator,  whose  high  importance  is  evidenced  by  the  fact 
that  he  ranks,  in  official  precedence  in  Scotland,  next  after 
the  Lord  High  Chancellor.  The  payment  of  "  teinds,"  or 
tithes,  however,  is  still  enforceable  by  the  lay  courts,  which 
recognize  the  right  of  private  patronage,  and  undertake  to 
enforce  the  lawful  decrees  of  the  General  Assembly.  There 
is,  in  fact,  a  voluntary  Episcopalian  Church  in  Scotland,  in 
communion  with  the  Church  of  England,  though  entirely 
self-governing;  but  this  body  has  no  more  connection  with 
the  State  than  has  any  other  Nonconformist  body. 


OTHER    ESTABLISHED    CHURCHES         301 

The  Irish  Chuech 

As  has  before  been  pointed  out,  the  Church  in  Ireland 
was  a  branch  of  the  Anglican  Church  which,  until  the  year 
1869,  was  administered  in  much  the  same  way  as  the  parent 
Church,  and  had  much  the  same  rights  (including  represen- 
tation in  the  House  of  Lords),  despite  the  fact  that,  by  its 
adoption  of  Protestantism  at  the  Reformation,  and  the  in- 
flux of  Presbyterian  settlers  in  the  seventeenth  century,  it 
had  become  the  Church  of  a  small  minority  of  the  Irish  na- 
tion. In  1869,  it  was  disestablished  and  partly  disendowed ; 
its  bishops  disappeared  from  the  House  of  Lords,  and  all 
its  coercive  powers  vanished.  On  the  other  hand,  it  became 
a  great  voluntary  body  with  complete  powers  of  self-gov- 
ernment, including  the  right  to  appoint  its  own  bishops  and 
other  officials. 

The  Anglican  Church  in  the  Isle  of  Man  is  a  part  of  the 
Established  Church  of  England,  under  its  own  bishop,  and 
forms  a  diocese  of  the  province  of  York.  The  Anglican 
Church  in  the  Channel  Islands  is  under  the  jurisdiction  of 
the  Bishops  of  Winchester. 


The  Church  in  British  India 

In  British  India,  the  Crown  has  power  by  statute  to  ap- 
point three  bishops  whose  incomes  are  charged  on  the  reve- 
nues of  India,  viz.  the  bishops  of  Calcutta,  Madras,  and 
Bombay,  and  to  confer  upon  them  such  ecclesiastical  juris- 
diction over  ministers  of  the  Church  of  England  in  India  as 
the  Letters  Patent  appointing  them  may  authorize.  The 
Bishop  of  Calcutta  is  Metropolitan,  and  may  admit  persons 
to  Holy  Orders  for  service  in  his  own  diocese;  and  the  other 
two  bishops  take  the  oath  of  obedience  to  him.  Each  of  these 
dioceses  has  also  an  archdeacon  appointed  by  the  Crown. 
There  are  a  number  of  chaplains  in  British  India  also  ap- 
pointed by  the  Crown,  and  paid  out  of  Indian  revenues ; 
two  at  least  of  these  in  each  diocese  must  be  ordained  min- 


302  THE    ESTABLISHED    CHURCHES 

isters  of  the  Church  of  Scotland,  under  the  ecclesiastical 
jurisdiction  of  the  Presbytery  of  Edinburgh  (p.  300). 

Creation  or  New  Bishoprics 

The  power  of  the  Crown  to  create  bishoprics  and  ap- 
point bishops  outside  these  three  dioceses  and  in  the  colonies, 
has  been  much  disputed ;  and  it  is  very  doubtful  whether  the 
Crown  can  create  dioceses  with  ecclesiastical  jurisdiction, 
except  by  virtue  of  the  provisions  of  an  Act  of  Parliament. 
But  there  seems  no  reason  to  doubt,  that  the  authorities  of 
the  Church  may  appoint  and  consecrate  bishops  to  act  in 
such  places  in  a  purely  voluntary  capacity,  subject  to  the 
rule  that  no  bishop  can  be  consecrated  in  England  without 
licence  under  the  King's  sign-manual  warrant  (p.  29),  coun- 
ter-signed by  a  Secretary  of  State.  Many  colonial  and  for- 
eign bishops  have,  in  fact,  been  thus  consecrated;  and,  in 
some  of  the  Crown  colonies,  their  stipends  are  paid  out  of 
the  colonial  revenue,  while  in  others  a  grant  is  made  from 
public  funds  towards  the  support  of  the  various  religious 
bodies  working  in  the  colony.  But  in  no  case  does  the  ec- 
clesiastical establishment  form  part  of  the  government  of 
the  colony ;  and  the  tendency  is  to  diminish  official  recogni- 
tion of  ecclesiastical  authorities  as  such. 

Finally,  it  may  be  observed,  there  is  nothing  to  prevent 
any  person,  not  in  Anglican  orders,  or  any  other  orders, 
calling  himself  "  Reverend  "  or  "  Bishop,"  if  it  pleases  him 
to  do  so ;  provided,  of  course,  that  he  does  not  attempt  to 
pass  himself  off  as  an  ordained  clergyman  or  bishop  of  the 
Church  of  England. 


CHAPTER  XIII 

LOCAL    GOVERNMENT    (THE    SMALLER    UNITS) 

All  government  is,  at  the  present  day,  in  a  sense,  local; 
because  the  boundaries  of  each  State,  however  large,  are  at 
least  supposed  to  be  fixed,  and  the  State  cannot  exercise  au- 
thority beyond  them,  except  by  toleration.  And  it  is  really 
very  difficult,  in  writing  of  a  large  and  composite  State,  to 
be  quite  strict  in  the  use  of  the  term  "  local  government  " ; 
for  instance,  many  writers  describe  the  government  of  a  sin- 
gle colony,  or  even  group  of  colonies,  though  they  may  be 
of  vast  extent,  as  "  local,"  to  distinguish  it  from  the  Im- 
perial government  in  London. 

Meaning  of  "  Local  Government  " 

But  what  is  specially  meant  by  "  local  "  government  is  the 
government  of  small  areas,  such  as  counties,  boroughs,  and 
parishes,  in  which  the  inhabitants  may  at  least  be  assumed 
to  be  in  more  or  less  daily  contact  with  one  another,  and  to 
realize  clearly  their  common  interests.  This  is  the  strength 
of  local  government.  Its  weakness  is,  that  it  is  apt  to  have 
no  concern  with  wider  interests  outside  its  local  area.  For- 
merly, local  government  was  also  distinguished  from  central 
government  by  the  fact  that  its  duties  were  concerned  mainly 
with  economic  and  sanitary  matters ;  while  the  central  gov- 
ernment occupied  itself  mainly  with  military  and  judicial 
affairs.  The  great  increase  in  the  activities  of  the  central 
governments,  all  over  the  civilized  world,  which  has  taken 
place  in  recent  years,  has,  however,  tended  to  make  this  dis- 
tinction meaningless ;  and,  in  consequence,  the  line  between 
central  and  local  government  is  now  exceedingly  difficult 
to  draw. 


304  LOCAL    GOVERNMENT 

Local  Interests  Strong  in  England 

The  United  Kingdom,  and  especially  England,  was,  at 
one  time,  emphatically  a  land  of  local  institutions.  Settled 
in  the  days  when  the  means  of  intercourse  over  wide  spaces 
were  few  and  difficult,  by  a  primitive  people  with  no  experi- 
ence of  civilized  government,  it  naturally  became  a  country 
of  strong  local  interests,  whose  scattered  little  communities 
were  absorbed  in  their  own  affairs,  and  knew  little,  if  any- 
thing, beyond  their  own  boundaries.  Their  isolation  is  at- 
tested by  many  immistakable  signs;  one  of  the  most  strik- 
ing being  the  fact  that,  until  so  late  as  the  eleventh  or  twelfth 
century,  one  village  might  be  in  the  throes  of  a  famine, 
whilst  another,  not  forty  miles  away,  had  a  surplus  of  com. 
People  living  in  the  east  of  England  could  hardly  understand 
the  speech  of  those  living  in  the  west.  An  old  English  poem 
speaks  of  it  as  common  practice  to  shoot  at  sight  any 
stranger  who  came  over  the  village  boundary  without  blow- 
ing his  horn.  In  the  thirteenth  century,  a  law  provided  that 
any  stranger  entering  a  town  between  sunset  and  sunrise 
should  be  arrested  and  detained  till  morning,  and  that  any 
stranger  lodging  in  the  suburbs  must  be  under  the  guaran- 
tee of  his  host.  Much  of  the  Englishman's  aptitude  for  self- 
government  is,  doubtless,  due  to  this  long  history  of  local 
isolation. 

Not  so  the  Colonies 

The  present  colonies,  at  any  rate  the  great  self-govern- 
ing Dominions,  of  the  British  Empire  have,  on  the  other 
hand,  been  settled  by  people  with  a  long  tradition  of  civilized 
government,  a  certain  familiarity  with  wide  ideas,  and  enor- 
mously improved  means  of  communication.  Roads,  railways, 
telegrams,  and  the  daily  newspapers,  bring  the  settler  in 
the  Canadian  backwoods  or  the  Australian  "  bush  "  into  far 
closer  intercourse  with  Europe  than  it  was  possible  for  the 
farmer  of  East  Essex  to  maintain  with  London  a  thousand 
years  ago.  Consequently,  though  many  of  the  Dominion  set- 
tlements are  remote  from  one  another  and  the  centre  of  gov- 


EARLY    LOCAL    UNITS  305 

ernment,  the  settlers  look  rather  to  Toronto,  or  Melbourne, 
or  Johannesburg,  for  guidance  and  assistance,  than  to  their 
nearer  neighbours ;  and  local  institutions  have  made  com- 
paratively little  progress  in  the  British  colonies.  Neverthe- 
less, as  settlement  becomes  closer,  these  are  likely  to  de- 
velop; and,  in  any  case,  a  study  of  the  government  of  the 
Empire  would  hardly  be  complete  without  some  description 
of  the  local  government  system  of  England. 

The  Township  or  Parish 

The  unit,  or  smallest  group,  of  local  government  in  Eng- 
land is,  and  has  been  from  the  dawn  of  English  history,  the 
township,  village,  or  parish.  Whether  the  colonization  of 
England  at  once  took  this  fonn,  or  whether  townships  were 
formed  by  sub-settlement  from  larger  groups,  it  is  impos- 
sible to  say.  Above  them  stood,  in  ancient  England,  the 
hundred,  comprising  an  uncertain  number  of  townships,  and, 
above  the  hundred  again,  the  shire  or  county,  comprising 
several  hundreds.  The  origin  of  the  hundred  is  even  more 
mysterious  than  that  of  the  township ;  for  it  is  clear  that 
the  township  was  a  community  formed  or  developed  for  the 
purpose  of  carrying  on  agriculture,  while  the  hundred  had 
no  such  obvious  object.  About  the  origin  of  the  shires  or 
counties,  something  a  little  more  definite  is  known.  Some 
of  them,  undoubtedly,  such  as  Wiltshire,  Somersetshire,  and 
Sussex,  were  tribal  settlements  which  early  became  absorbed 
into  Heptarchic  Kingdoms.  Others,  such  as  Cambridge- 
shire, Derbyshire,  Bedfordshire,  Nottinghamshire,  and 
Huntingdonshire,  were  districts  deliberately  carved  out  of 
the  old  Kingdom  of  Mercia  for  military  reasons ;  being,  in 
effect,  the  areas  formerly  defended  by  their  county  towns. 
It  will  be  found,  in  fact,  that  in  these  counties  the  county 
town,  from  which  the  shire  takes  its  name,  is  usually  sit- 
uated near  the  centre,  or  in  an  important  strategical  posi- 
tion ;  while  there  is  no  such  rule  in  the  older  or  tribal  shires, 
which  sometimes  seem  to  have  no  fixed  capitals. 

This  primitive  arrangement  of  parish,  hundred,  and  shire 


306  LOCAL    GOVERNMENT 

or  county,  which  came  into  greater  prominence  when  the 
Heptarchic  Kingdoms  were  consoHdated  into  a  single  King- 
dom (p.  1),  is  still  the  key  to  the  scheme  of  local  govern- 
ment in  England ;  though  the  ancient  institution  of  the  hun- 
dred has  ceased  to  be  of  practical  importance,  being  replaced 
by  the  "  district,"  while  the  growth  of  "  boroughs,"  or  ur- 
ban areas  of  dense  population,  with  advanced  rights  of  self- 
government,  has  somewhat  obscured  it.  Moreover,  and  as 
a  result  of  the  same  growth  of  population,  we  have  a  cross- 
division  between  "  urban  "  and  "  rural  "  areas,  e.g.  urban 
parish,  urban  district,  and  borough,  as  distinguished  from 
rural  parish,  rural  district,  and  county.  But  the  distinc- 
tion is  not  complete  or  systematic;  and  there  is,  as  we  shall 
see  (pp.  312,  313),  one  very  puzzling  kink  in  it.  The  sys- 
tem is,  in  fact,  characteristically  English. 

The  Feudal  Unit 

The  parish  or,  to  be  strictly  correct,  the  "  civil  parish  " 
(as  distinct  from  the  purely  ecclesiastical  parish)  is  the 
ancient  township,  or  agricultural  settlement  of  small  peasant 
farmers,  self-supporting,  co-operative,  and  isolated  in  the 
midst  of  its  open  fields.  Whether  it  was  originally  self- 
sown,  or  settled  by  a  person  in  authority,  is  a  much-disputed 
question ;  certainly  from  the  eleventh  century,  or  even  earlier, 
the  average  township  or  "village  "  (as  the  Normans  called 
it)  has  been  much  under  the  control  of  a  "  lord  "  or  "  land- 
lord," whose  powers  have  varied  from  time  to  time.  But 
some  historians  believe  that  this  person,  ancient  as  is  his 
character,  was  an  interloper  into  the  original  independent 
township,  whose  presence  has  not  been  an  unmixed  benefit. 
Certain  it  is,  that  the  township,  or  village,  though  origi- 
nally a  community  of  persons  working  on  a  common  plan 
of  intermixed  strips  in  the  great  arable  fields  of  the  town- 
ship, became  first,  about  the  eleventh  century,  a  group  of 
dependents  or  serfs  "  holding  of  "  a  lord,  according  to  feu- 
dal ideas,  and  finally,  as  the  result  of  the  "  enclosures  " 
which  went  on  from  the  sixteenth  to  the  eighteenth,  a  mere 


SERFDOM    AND    POOR    RELIEF  307 

body,  first  of  owners  ("yeomen"),  then  of  tenants,  each 
working  his  own  block  of  land  with  hired  labour  in  his  own 
way,  or,  later,  under  the  terms  of  an  express  bargain  be- 
tween himself  and  his  landlord,  from  whom  he  has  taken  it 
on  a  "  tenancy,"  long  or  short.  But  the  still  binding  effect 
of  the  "  custom  of  the  country  "  (p.  13)  points  strongly 
back  to  the  older  state  of  affairs. 

The  "  Manor  " 

It  was  natural  that  the  spread  of  feudal  ideas,  above  de- 
scribed, should  exercise  a  depressing  influence  on  the  vil- 
lages, which,  whether  they  ever  had  a  regular  "  moot,"  or 
meeting,  or  not,  had  undoubtedly  some  means  of  discussing 
their  common  affairs.  These  then  passed,  very  largely,  into 
the  hands  of  the  lord's  court  or  courts,  held  in  his  hall,  by 
himself  or  his  steward,  where  the  "  homage,"  or  body  of 
tenants,  "  presented  "  the  various  offences  against  the  cus- 
tom of  the  township  or  "manor"  (as  it  came  generally  to 
be  called),  and  where,  as  existing  tenants  died  or  transferred 
their  holdings,  their  heirs  or  transferees  were  "  admitted  " 
to  succeed  them.  And,  when  feudalism  itself  received  its 
death-blow  from  the  Great  Plague  of  the  fourteenth  cen- 
tury, which  broke  up  the  manorial  system  of  self-labour,  and 
started  the  movement  in  favour  of  enclosures,  what  little 
common  business  remained  to  be  discussed,  seems  to  have 
been  discussed  in  the  "  vestry  "  or  robing  room  of  the  church, 
probably  under  the  influence  of  the  parish  priest. 

The  "Vestry" 

The  influence  of  the  vestry  meeting  seems  to  have  grown 
with  the  Reformation;  and  when  the  great  Elizabethan 
system  of  poor  relief  was  founded  in  the  sixteenth  century, 
it  was  on  the  parish  that  the  burden  of  carrying  it  out  was 
cast.  The  overseers  of  the  parish  (probably  nominated  at 
the  vestry  meeting)  levied  a  rate  on  all  householders  of  the 
parish,   for  the  double  purpose  of  setting  the  able-bodied 


308  LOCAL    GOVERNMENT 

poor  on  work  (whence  the  name  "  workhouse  "),  and  of  re- 
lieving the  indigent  incapable,  and  expended  the  sum  thus 
raised  for  the  maintenance  of  the  poor  of  the  parish.  The 
Justices  of  the  Peace  (pp.  249-255),  whose  duties  in  con- 
nection with  wages  and  apprenticeship  had  been  enormously 
increased  by  the  Statutes  of  Labourers  which  followed  on 
the  Great  Plague,  or  "  Black  Death,"  were  entrusted  with 
supervision  of  the  system  throughout  their  counties.  But 
the  main  burden  fell,  as  has  been  said,  upon  the  parish  offi- 
cials ;  and  an  indelible  mark  of  this  fact  is  the  legal  defini- 
tion of  a  civil  parish  at  this  day,  as  "  a  place  for  which  a 
separate  poor  rate  is  or  can  be  made,  or  for  which  a  sep- 
arate overseer  is  or  can  be  appointed." 

Poor  Law  Reform 

Poor  relief  is,  therefore,  really  the  historical  basis  of 
modern  local  government  in  England;  for  the  Elizabethan 
system  was  hardly  in  order  when  new  tasks,  such  as  the  pro- 
vision and  repair  of  roads  and  ditches,  were  thrown  upon  it. 
Unfortunately,  owing  to  its  historic  connection  with  a  severe 
repression  of  "  vagabondage,"  and  to  the  irregular  growth 
of  population  in  the  second  half  of  the  eighteenth  cen- 
tury, the  Poor  Law  system  got  into  a  bad  state  of  waste  and 
immorality ;  and  one  of  the  first  cares  of  the  Reformed  Par- 
liament of  1832  was,  to  make  radical  alterations  in  it.  The 
parish  still  remained  as  the  unit  of  liability,  i.e.  each  parish 
was  supposed  to  support  its  own  "  settled  poor,"  and  its 
overseers  still  "  struck  "  a  rate.  But,  subject  to  a  nominal 
control  by  the  Justices  of  the  Peace,  the  real  management 
of  poor  relief  was  placed  in  the  hands  of  Boards  of  Guar- 
dians of  the  Poor,  elected  for  a  group  of  contiguous  par- 
ishes called  a  "  Union  "  (which  name  thus  became  equiva- 
lent, in  popular  language,  to  "workhouse"),  who  jointly 
administered  poor  relief  for  all  the  parishes  in  the  Union. 
For  some  time  longer,  the  pretence  of  separate  parish  lia- 
bility was  kept  up;  but  from  the  year  1865  the  poor  of  the 
Union  have  been  "  pooled,"  i.e.  maintained  out  of  a  fund 


REFORM    OF    THE    PARISH  309 

levied  by  rates  on  each  parish  on  a  uniform  plan,  accord- 
ing to  the  value  of  its  land  and  buildings,  regardless  of 
which  parish  of  the  Union  they  were  settled  in.  Thus  the 
parish  remains  a  rating,  but  not  a  managmg  body,  for  Poor 
Law  purposes. 

Decay  of  the  Rural  Parish 

In  densely  populated  areas,  which  demanded  much  pro- 
vision of  water-supply,  lighting,  street-paving,  and  other 
public  conveniences,  this  change  in  the  Poor  Law  system 
made  little  difference  —  indeed  in  large  towns  the  parish  au- 
thorities remained  overloaded  with  work.  But  in  the  rural 
areas,  which  do  not  require  such  elaborate  provision,  and  in 
which  a  single  parish  could  hardly  be  trusted  to  manage 
such  important  matters  as  sanitation  and  road-making, 
these  latter  duties  were  usually  entrusted  to  larger  districts, 
under  Local  Improvement  Boards  or  Turnpike  Trusts ;  while 
the  single  parish  fell  much  into  the  background,  the  annual 
vestry  meeting  becoming  largely  a  mere  form. 

Parish  Councils 

In  the  year  1894,  however,  a  great  effort  was  made  to  re- 
vive parish  life  by  the  creation  of  "  parish  councils  "  in  all 
rural  parishes  having  a  population  of  300,  and  in  less  popu- 
lous parishes  or  groups  of  parishes  which  demand  them. 
These  councils  are  elected,  once  every  three  years,  by  the 
"  parochial  electors,"  i.e.  persons  on  the  Local  Government 
Register,  which  contains  prima  facie,  at  present,  the  names 
of  all  male  owners  of  land  worth  five  pounds  a  year  in  the 
parish,  and  all  male  ^  lodgers,  occupying  rooms  worth  ten 
pounds  a  year  unfurnished,  and  all  resident  householders, 
and  all  occupiers  of  land  worth  ten  pounds  a  year  in  the 
parish,  male  or  female.  The  precise  numbers  of  the  coun- 
cillors are  fixed  in  each  case  by  the  County  Council  (p.  331)  ; 

*  If  the  new  Representation  of  the  People  Bill  takes  eflFect  in  the  form  pro- 
posed, this  restriction  will  cease;  and  the  parish  will  have  a  simple  occupation 
franchise. 


310  LOCAL    GOVERNMENT 

and  their  meetings,  which  must  not  be  less  than  four  in  the 
year,  are  presided  over  by  an  elected  Chairman  or  Chair- 
woman. But  the  parish  council  cannot  proceed  to  business 
unless  three  members  are  present. 

Their  Powers 

The  powers  of  a  parish  council  are,  in  theory,  numerous. 
It  is  a  "  corporation,"  or  legal  person,  and  can  therefore 
hold  property,  either  in  land  or  movables;  subject  to  the 
rule  that  no  corporation  can  acquire  land  without  the  au- 
thority of  a  statute  or  a  licence  from  the  Crown. ^  It  has 
taken  over,  generally,  the  position  of  the  old  "  vestry " 
(p.  307),  except  with  regard  to  strictly  ecclesiastical  matters, 
as  well  as  that  of  the  old  churchwardens,  who,  by  virtue  of 
various  statutes  of  the  nineteenth  century,  had  a  good  many 
lay  duties  entrusted  to  them.  It  has  succeeded  to  the  power, 
nominally  exercised  by  the  Justices  of  the  Peace,  but  really 
by  the  vestry,  of  appointing  overseers  of  the  poor,  who  are 
compellable  to  serve,  but  whose  duties  are  mainly  confined 
to  the  levying  of  rates  to  satisfy  "  precepts  "  addressed  to 
them  by  the  Guardians  of  the  Poor  (p.  812),  and  the  county 
authorities.  The  parish  council  also  appoints  school  man- 
agers of  a  public  elementary  school  within  its  parish  in  dif- 
ferent proportions,  according  to  whether  it  is  a  "  provided  " 
or  "  non-provided  "  school  (p.  242)  ;  and  it  appoints  and 
dismisses  assistant  overseers,  i.e.  paid  assistants  or  the  over- 
seers, where  these  are  necessary.  It  watches  the  use  of  the 
charitj^  funds  of  the  parish  (other  than  those  which  are 
purely  ecclesiastical),  and  is  entitled  to  complain  of  any  pro- 
posed diversion  of  them.  It  maintains  and  repairs  footways 
in  the  parish,  and  views  with  a  jealous  eye  any  attempt  to 
divert  or  stop  them.  It  has  a  good  deal  to  do  with  the  pro- 
vision and  management  of  allotments  —  i.e.  small  patches 
of  land  cultivated  as  market  gardens  —  and  with  recreation 

1  This  is  the  rule  of  "mortmain,"  which,  originally  devised  to  check  the 
acquisition  of  land  by  the  Church,  was  afterwards  extended  to  all  corporations. 


PARISH    COUNCILS    AND    MEETINGS       311 

grounds.  It  may  make  representations  about  insanitary 
dwelling-houses,  and  compel  a  medical  inspection  and  re- 
port ;  and  it  may  complain  to  the  County  Council  if  the  sani- 
tary authority  (pp.  317-324)  neglects  its  duties  in  the 
matters  of  water-supply  or  repair  of  highways. 

"  Adoptive  "  Acts 

These  powers  belong  to  all  parish  councils ;  but  some 
rural  parishes  have  more  ambitious  ideas,  and  adopt  the 
permissive  powers  offered  by  certain  Acts  of  Parliament  on 
condition  that  there  is  an  express  demand  for  them.  For- 
merly, such  demands  were  made  by  the  "  inhabitants  " ; 
now  they  are  made  by  the  "  parish  meeting,"  which  en- 
trusts the  execution  of  them  to  the  parish  council.  Such 
schemes  include  the  provision  of  public  libraries,  cemeteries, 
baths  and  washhouses,  and  road  lamps. 

Parish  Meetings 

The  "  parish  meeting,"  just  alluded  to,  is  the  primary  as- 
sembly of  the  rural  parish,  and  consists  of  the  "  parochial 
electors  "  (p.  309),  i.e.  persons  who  elect  the  parish  coun- 
cils, if  there  is  one  (p.  309).  In  parishes  which  have  coun- 
cils, the  powers  of  the  parish  meeting  (which  must  be  held 
once  a  year,  in  March,  after  six  p.m.)  will  be  mainly  con- 
fined to  electing  the  council  and  criticizing  its  work,  and  re- 
solving to  adopt  the  "  adoptive  Acts  "  above  referred  to, 
and  the  sanctioning  of  any  proposed  expenditure  by  the 
council  involving  a  rate  of  more  than  threepence  in  the 
pound  of  the  annual  value  of  the  land  in  the  parish,  as  as- 
sessed for  rating  purposes.  But  where  there  is  no  parish 
council,  the  parish  meeting  must  be  held  twice  a  year;  and 
it  then  exercises  the  powers  of  a  parish  council  above  de- 
scribed in  the  matter  of  the  duties  formerly  belonging  to 
the  vestry,  the  appointment  of  overseers,  assistant  over- 
seers, school  managers,  and  charity  trustees,  and  the  stop- 
ping-up  of  footpaths.     But  its  power  of  incurring  expenses 


312  LOCAL    GOVERNMENT 

(other  than  those  under  "  adoptive  "  Acts)  is  limited  to  a 
sixpenny  rate;  and  it  cannot  raise  any  loan  on  the  security 
of  parish  property  without  the  approval  of  its  county  coun- 
cil and  the  Local  Government  Board.  Moreover,  neither 
the  parish  council  nor  the  parish  meeting  levies  its  own  rates ; 
it  sends  a  precept  to  the  overseers,  who  include  the  amount 
claimed  in  the  county  rates. 

The  Urban  Parish 

It  seems,  at  first  sight,  not  a  little  curious,  that  the  same 
statute  which  erected  the  elaborate  machinery  of  parish 
councils  in  rural  parishes,  should  have  apparently  ignored 
the  existence  of  urban  parishes,  which  are,  presumably,  still 
more  in  need  of  local  government.  But  the  mystery  is  ex- 
plained by  the  fact,  that  the  Local  Government  Act  of  1894 
was  also  concerned  with  setting  up  a  great  uniform  system 
of  sanitary  districts,  urban  and  rural,  and  that,  in  the  ma- 
jority of  cases,  the  urban  (sanitary)  district  outside  a  bor- 
ough (p.  318)  is  really  an  old  urban  parish,  which,  having 
passed  through  an  intermediate  stage  of  a  Local  Improve- 
ment District,  under  a  Board  of  Commissioners  or  Trustees, 
now  blossoms  out  into  a  full-blown  urban  district,  which, 
having  large  powers  as  such,  does  not  also  need  parochial 
machinery  or  power.  Leaving  for  the  present  these  sani- 
tary districts,  let  us  look  for  a  moment  at  the  next  step  on 
the  ladder  of  local  government,  viz.  the  Board  of  Guardians 
of  the  Poor,  before  alluded  to  (p.  308). 

The  Union 

The  Poor  Law  Union,  as  its  name  implies,  is  a  union  of 
parishes,  not  necessarily  all  rural  or  all  urban.  But  whereas 
the  rural  parishes  of  a  Union  do  not  elect  special  Guardi- 
ans on  the  Board,  being  represented  thereon  by  the  per- 
sons whom  they  elect  to  the  rural  district  council  of  whose 
district  the  parish  forms  part  (p.  318),  the  urban  parish, 
which  usually  has  its  own  district  council,  has  to  elect  spe- 
cial Guardians  (the  number  fixed  by  the  Local  Government 


MODERN    POOR    RELIEF  313 

Board)  to  the  Board  of  the  Union  of  which  it  forms  a  part. 
Thus,  in  a  mixed  Union,  the  Rural  District  Council  will  be 
the  Board  of  Guardians  minus  the  representatives  of  the 
urban  parishes,  who  will  be  Guardians  only,  and  not,  as 
such,  district  councillors.  Inasmuch  as  both  district  coun- 
cillors and  Guardians  are  elected  by  electors  having  precisely 
the  same  qualifications,  being  the  "  parish  electors  "  (p.  309) 
in  each  case,  this  difference,  though  perhaps  inevitable  in 
the  existing  scheme  of  local  government,  may  fairly  be  de- 
scribed as  a  "  kink."  Neither  sex  nor  marriage  disqualifies 
for  being  a  Guardian;  and,  as  a  matter  of  fact,  much  ex- 
cellent work  is  done  on  Boards  of  Guardians  by  married 
women.  But  no  one  can  be  elected  as  a  Guardian  unless  he 
or  she  is  qualified  as  an  elector,  or  is  resident  within  the 
Union. 

Poor  Relief 

The  work  of  Boards  of  Guardians  is,  as  has  been  said 
(p.  308),  the  management  and  distribution  of  the  very 
large  sum  annually  expended  in  the  relief  of  poverty  by  the 
State.  The  importance  of  their  position  lies  in  the  fact, 
that  every  destitute  person  has  a  right  to  relief  in  the  Union 
in  a  parish  of  which  he  has  his  "  settlement,"  i.e.  to  which 
he  is  attached  by  birth,  residence,  or  other  qualification. 
Such  a  right  naturally  entails  great  responsibilities  on  the 
Poor  Law  authorities ;  and  a  careless  compliance  with  it 
nearly  brought  the  country  to  bankruptcy  at  the  end  of  the 
eighteenth  century.  Still,  even  in  1834,  the  date  of  the 
passing  of  the  great  Poor  Law  Amendment  Act,  there  was 
no  widespread  desire  to  deny  the  existence  of  the  right;  it 
was  only  determined  (and,  even  that,  in  the  face  of  strong 
opposition)  to  restrict  very  severely  the  conditions  of  its 
exercise. 

"  Outdoor  Relief  " 

The  great  means  chosen  was,  in  addition  to  the  substitu- 
tion of  Guardians  of  the  Union  for  the  parish  overseers, 
the   substantial    suppression    of   "  outdoor    relief,"   i.e.    the 


314  LOCAL    GOVERNMENT 

payment  of  money  or  the  supply  of  goods  to  paupers  who 
continue  to  live  in  their  own  homes.  The  sentimental  argu- 
ments in  favour  of  such  a  practice  are  attractive;  the  ad- 
.ministrative  arguments  appeal  to  the  inherent  laziness  of 
human  nature.  But  it  is  a  practice  which  lends  itself  to  the 
grossest  abuses ;  unless  it  is,  as  in  the  case  of  the  Old  Age 
Pension  sj^stem  (which  is  not  administered  through  the 
Guardians  of  the  Poor),  a  deliberate  and  uniform  scheme, 
not  dependent  for  its  working  on  the  caprice  or  corruption 
of  local  bodies  and  officials.  Outdoor  relief  may,  however, 
still  be  granted  in  exceptional  cases,  such  as  those  of  wid- 
ows, women  deserted  by  their  husbands,  and  sick  persons; 
and  a  certain  number  of  payments  made  by  the  Guardians 
to  other  bodies  on  behalf  of  persons  in  receipt  of  poor  re- 
lief, though  not  usually  classed  under  this  head,  properly 
speaking  belong  to  it. 

"  Inpoor  Relief  " 

But  the  great  bulk  of  the  money  expended  by  the 
Guardians  goes  in  the  maintenance  of  workhouses  and  simi- 
lar institutions  in  which  "  indoor  relief "  is  administered. 
It  is  satisfactory  to  find  that  the  working  of  the  Old  Age 
Pensions  system,  as  well  as  the  increased  prosperity  of  the 
working  classes  brought  about  by  the  great  war,  has  sub- 
stantially diminished,  during  the  past  few  years,  the  amount 
expended  on  poor  relief;  and  it  must  not  be  forgotten,  that 
a  good  deal  of  the  legal  liability  for  the  maintenance  of  poor 
persons  falls  upon  their  relatives.  If  these  persons  satisfy 
their  liabilities,  the  Guardians  have,  naturally,  no  say  in  the 
matter;  but  if  they  do  not,  and  the  expense  of  maintaining 
the  poor  persons  falls  on  the  Guardians,  the  latter  take 
steps  to  recover  this  expense  from  the  persons  primarily 
liable. 

Other  Duties  of  Guardians:    Vaccination 

In  addition  to  their  primary  duties  as  dispensers  of  poor 
relief,  the  Guardians   of  the   Poor  have  one   or  two   other 


GUARDIANS    OF    THE    POOR  315 

spheres  of  activity.  They  are  the  authority  for  the  enforce- 
ment of  the  Vaccination  Acts ;  every  Poor  Law  Union  being 
a  "  vaccination  area."  This  somewhat  unpopular  duty  they 
perform  through  specially  qualified  officials,  subject  to  the 
numerous  loopholes  open  to   conscientious   objectors. 

Births,  Deaths,  and  Marriages 

The  Poor  Law  Union  is  also  the  local  area  for  the  regis- 
tration of  births,  deaths,  and  marriages,  which  has  been 
compulsory  since  1874 ;  and  the  clerk  to  the  Guardians  is 
usually  the  Superintendent  Registrar,  while  the  Guardians 
appoint,  for  the  various  sub-districts,  Registrars  whose 
duties  as  marriage  officers  are  responsible  and  important. 
The  superintendence  of  the  registration  system  is,  however, 
not  entrusted  directly  to  the  Local  Government  Board,  but 
to  the  Registrar-General's  department  in  London,  which  is 
a  non-political  department  under  the  Board. 

Poor  Law  Officials 

For  the  performance  of  its  numerous  duties,  a  Board  of 
Guardians  requires,  in  addition  to  those  named  above,  a 
staff  of  clerical  and  professional  officials,  such  as  medical 
and  relieving  officers,  and  masters  and  matrons  of  work- 
houses. We  have  previously  alluded  (p.  230)  to  the  com- 
promise between  self-government  and  central  control  which 
secures  the  efficiency  and  independence  of  such  persons.  The 
officials  are  appointed  by  the  Guardians,  subject  to  quali- 
fications laid  down  by  Parliament  or  the  Local  Government 
Board;  but  they  can  only  be  dismissed  with  the  consent  of 
the  Local  Government  Board.  The  Registrar-General  can, 
however,  dismiss  the  registration  officials. 

Poor-rates 

Finally,  in  order  to  raise  the  money  required  to  discharge 
its  heavy  responsibilities,  a  Board  of  Guardians  has  sub- 
stantial powers,  in  the  matter  of  levying  rates.     The  "  poor- 


316  LOCAL    GOVERNMENT 

rate"  is,  as  has  been  said  (p.  307),  really  the  centre  point 
of  modern  local  government  in  England ;  but  the  methods  of 
raising  it  have  varied  from  time  to  time.  The  process  still 
begins  with  the  overseers  of  the  parish  (p.  307)  ;  they  have 
to  draw  up  annually  a  list  of  the  rateable  properties  within 
the  parish,  with  the  value  at  which  each  is  assessed  for  the 
purposes  of  the  Poor  Law.  This  list  is  sent  to  a  specially 
appointed  Union  Assessment  Committee  of  the  Guardians, 
annually  elected  by  them;  and  this  Committee  proceeds  to 
hear  any  objections  which  may  be  made  to  the  valuation  of 
a  particular  property,  or  the  omission  of  a  property  from 
the  list.^  When  the  list  is  finally  settled  by  the  Committee, 
it  becomes  the  Valuation  List  for  the  year ;  and  the  combined 
Valuation  Lists  of  all  the  parishes  in  the  Union  becomes,  sub- 
ject to  a  right  of  appeal  to  the  Justices  of  the  Peace  by  any 
aggrieved  objector,  the  basis  of  the  assessment  of  the  poor- 
rate  for  the  Union.  The  Guardians,  having  estimated  the 
amount  of  money  which  will  be  required  to  enable  them  to 
discharge  their  duties  during  the  next  year,  after  obtaining 
a  formal  allowance  of  the  rate  by  the  Justices  in  sessions, 
then  serve  a  "  precept  "  or  demand  upon  the  overseers  of 
each  parish  in  the  Union  for  a  proportionate  part  of  such 
amount;  and  the  overseers  proceed  to  assess  the  payment  of 
the  sum  required  upon  the  various  properties  in  the  parish 
Valuation  List,  and  to  collect  the  amount  accordingly,  usu- 
ally in  equal  half-yearly  instalments,  from  the  occupiers,  or, 
in  some  eases,  the  owners,  of  the  respective  properties. 

Unpopularity  of  Poor-law  System 

It  would  hardly  be  fair  to  leave  the  subject  of  poor  relief 
without  alluding  to  the  widespread  prejudice  against  the 
administration  of  the  system  which  has,  unfortunately, 
grown  up,  and  which  undoubtedly  deprives  it  of  much  of  its 
value.  The  original  dislike  of  the  system,  due  to  its  associa- 
tion with  a  harsh  repression  of  vagabondage  (p.  308)  and  the 

'  It  is  obvious  that  if  A's  property  is  omitted  from  the  list,  B's  will  be  more 
highly  rated. 


UNPOPULARITY  OF  POOR  LAW  SYSTEM     317 

strict  enforcement  of  the  law  of  "settlement"  (p,  313), 
began  to  die  away  in  the  eighteenth  century,  and  was  almost 
removed  by  the  famous  "  Speenhamland  Act,"  or  scale 
adopted  by  the  local  Justices  of  Berkshire  in  1795,  whereby 
any  deficiency  in  the  wages  received  by  the  labouring  man 
was  made  good  by  a  grant  out  of  the  rates,  varying  with  the 
price  of  bread.  Unfortunately,  this  crude  attempt  at  State 
Socialism  turned  out  in  practice  to  be  merely  a  device  for 
enabling  farmers  to  obtain  cheap  labour  at  the  cost  of  the 
rate-payers ;  and,  as  has  been  said,  it  nearly  brought  financial 
ruin  on  the  country.  The  necessary  reforms  of  1834  caused, 
however,  great  resentment  among  the  working  classes,  as  well 
as  among  those  numerous  people  who  put  sentiment  before 
common  sense;  and  this  resentment  was  strengthened,  un- 
doubtedly, by  the  harsh  conduct  of  many  of  the  smaller  work- 
house officials,  who  mistook  oppression  for  economy.  More 
than  once  the  new  reforms  were  in  grave  danger ;  and,  though 
they  have  weathered  the  storm,  and  though  much  thoroughly 
beneficent  work  is  done  by  the  Boards  of  Guardians,  the 
feeling  alluded  to  has  not  only  resulted  in  a  large  amount  of 
spasmodic  and  ill-regulated  "  charity  "  (so  called),  but  has 
also  had  the  effect  of  depriving  the  Poor  Law  authorities  of 
the  administration  of  certain  modem  institutions  which,  on 
all  grounds  of  reason,  ought  to  have  been  entrusted  to  them, 
e.g.  Old  Age  Pensions  and  provision  for  unemployment 
(pp.  231,  322).  It  may  be  said,  of  course,  that  in  a  happier 
social  system,  the  need  for  a  vast  scheme  for  the  relief  of  pov- 
erty would  be  non-existent ;  and  the  social  reformer  is  en- 
titled to  regard  the  Poor  Law  system  as  a  blot  on  the  country, 
and  to  look  forward  with  hope  to  its  disappearance. 

Sanitary  Districts 

Closely  connected,  as  we  have  seen  (p.  312),  with  the  Poor 
Law  Union,  is  the  sanitary  district.  But  the  connection  is 
arbitrary,  and  is  now  tending  to  disappear.  The  sanitary 
district  is  really  the  result  of  the  great  movement  in  favour 
of  public  health  conditions  which  was  produced,  or,  at  least, 


318  LOCAL    GOVERNMENT 

stimulated,  in  the  middle  of  the  nineteenth  century,  by  the 
visitations  of  the  cholera,  and  which  led  to  the  passing  of 
the  great  Public  Health  Act  of  1848,  now  superseded  by  the 
Act  of  1875  and  its  amendments.  The  urban  and  rural  sani- 
tary districts  created  under  the  provisions  of  these  Acts 
have  been  systematized  by  the  Local  Government  Act  of  1894< ; 
and  each  has  its  elected  council,  chosen  by  the  parochial 
electors  and  residents  in  the  same  manner  as  Boards  of  Guar- 
dians, and  holding  office  for  three  years,  but  retiring  by 
thirds  in  each  year. 

Urban  and  Rural  Districts 

But,  whereas  the  ordinary  "  urban  district  "  is  simply  and 
solely  a  sanitary  unit,  usually  (as  has  been  said)  an  old 
urban  parish,  the  council  of  every  ordinary  municipal  bor- 
ough (p.  334)  is  the  urban  sanitary  authority  for  all  par- 
ishes within  its  boundaries,  while  the  rural  sanitary  district 
is  such  part  of  a  Poor  Law  Union  as  is  not  comprised  in  any 
urban  parish  or  district,  and  the  rural  district  councillors 
are  also  the  Guardians  for  their  respective  parishes.  Thus, 
as  has  also  been  pointed  out  (p.  312),  where  a  Poor  Law 
Union  is  entirely  rural,  its  District  Council  and  Board  of 
Guardians  are  one  and  the  same  body,  though  performing 
different  duties ;  where  the  Union  contains  both  urban  and 
rural  parishes,  the  Board  of  Guardians  comprises  the  rural 
district  council  plus  specially  elected  Guardians  for  the 
urban  parishes. 

But  the  sanitary  districts  systematized  by  the  Local  Gov- 
ernment Act  of  1894  are  not  now  merely  "  sanitary  "  author- 
ities in  the  ordinary  sense  of  the  term.  They  have  taken  over 
the  duties  of  various  former  special  bodies,  such  as  Highway 
Boards,  Burial  Boards,  Water  and  Lighting  Boards,  and,  as 
we  have  seen  (p.  244),  in  some  cases,  of  the  School  Boards; 
the  object  being  to  reduce  as  far  as  possible  the  number  of 
local  authorities,  and  consolidate  various  powers  in  the  hands 
of  those  which  remain.  Only  it  must  be  remembered,  that 
there  is  still,  for  obvious  reasons,  a  great  difference  between 


DISTRICT    COUNCILS  319 

the  limited  powers  of  a  i-ural  authority,  and  the  more  exten- 
sive powers  of  an  urban  authority;  whether  the  latter  be  a 
borough  council  or  a  specially  elected  urban  council.^  Still, 
the  powers  of  the  two  classes  are  so  closely  parallel,  that  it 
will  save  time  to  deal  with  them  together,  merely  pointing 
out  important  differences.  The  subjects  with  which  they 
deal  may  conveniently  be  grouped  under  seven  heads. 

( 1 )  Highways.  —  There  has  been  a  steady  tendency,  for 
upwards  of  a  century,  to  transfer  the  control,  repair,  and 
making  of  roads,  from  the  parish  and  the  landowner  (the 
original  parties  liable)  to  the  larger  units ;  and  it  may  now 
be  said,  generally,  that  these  duties  rest,  except  so  far  as 
"  main  roads  "  are  concerned,  on  the  sanitary  district  authori- 
ties. The  distinction  between  a  "  main  road  "  under  the 
jurisdiction  of  the  county  authorities,  and  a  "  highway  " 
under  the  jurisdiction  of  the  district  authorities,  appears  to 
be  somewhat  arbitrary ;  -  but  it  should  be  remarked  that  a 
district  council  may,  if  it  likes,  insist  on  maintaining,  with  the 
assistance  of  a  grant  from  the  county  rates,  that  portion  of 
any  main  road  which  passes  through  its  district.  A  curious 
legal  difference  between  urban  and  rural  district  authorities 
is,  however,  to  be  found  in  the  fact  that,  while  the  surface  of 
the  highways  in  an  urban  district  is  actually  the  property 
of  the  district  council,  the  rural  council  has  merely  the  con- 
trol and  management  of  the  highways  in  its  district.  This 
difference,  though  apparently  technical,  is  not  without 
importance. 

(2)  Sewers  and  Drains.  —  Though  the  words  "sewer" 
and  "  drain  "  are  used  indifferently  by  most  people,  the  legal 
difference  is  that,  whereas  a  "  drain  "  is  merely  a  pipe  used 
to  carry  off  refuse  from  a  single  building  or  block  of  build- 
ings, or  a  pipe  under  the  control  of  a  special  road  authority, 

1  To  complete  our  view  of  sanitary  authorities,  we  should  take  account  of 
the  special  "Port"  sanitary  authorities,  about  sixty  in  number.  But  these  re- 
quire special  constitution ;  and  their  powers  are  so  varied,  that  they  do  not  lend 
diemselves  to  general  description. 

2  Apparently  all  former  "turnpike  roads"  are  main  roads,  and  all, roads 
declared  to  be  such  by  the  county  authorities  at  the  request  of  the  sanitary 
authorities. 


320  LOCAL    GOVERNMENT 

a  "  sewer "  includes  any  channel  for  carrying  off  refuse 
except  a  drain.  The  sewer  is,  therefore,  usually  made  (or, 
at  least,  taken  over)  and  maintained  by  the  sanitary  author- 
ity ;  while  the  drain  is  made  and  maintained  by  the  owner  or 
tenant  of  the  building,  under  the  supervision  and  control  of 
the  sanitary  authority.  A  sewer  may,  therefore,  be  an  open 
ditch  or  cut,  and,  in  rural  districts,  frequently  is  so.  Every 
sanitary  authority  is  also  responsible  for  supervising  the 
domestic  sanitation  of  its  district;  and  an  urban  sanitary 
authority  may  also  provide  urinals  and  similar  accommoda- 
tion at  the  public  expense.  Finally,  every  sanitary  authority 
may,  and,  if  required  by  the  Local  Government  Board,  must, 
undertake,  by  its  own  servants  or  through  contractors,  the 
removal  and  proper  disposal  of  refuse  of  a  miscellaneous 
kind  ("dustbin"  rubbish)   from  houses. 

(3)  Disease.  —  The  sanitary  authority  also  enforces  the 
Regulations  from  time  to  time  made  by  the  Local  Govern- 
ment Board  to  prevent  the  spread  of  infectious  diseases 
among  humans.  The  powers  which  it  thus  exercises  include 
the  visitation  and  inspection  of  infected  houses,  and  the 
compulsion  upon  medical  practitioners  and  heads  of  house- 
holds to  notify  cases  of  infectious  disease.  The  sanitary 
authority  may  also,  if  it  sees  fit,  provide  hospitals  for  any 
sickness,  and  undertake  itself  the  disinfection  of  houses.  It 
may  inspect,  and  order  the  destruction  of,  any  food  exposed 
for  sale  which  is  unfit  for  human  consumption;  and  it  may 
inspect  and  condemn  adulterated  articles,  even  though  they 
are  not  necessarily  injurious  to  health. 

(4)  Water-Supply.  —  The  actual  supply  of  water  for 
domestic  and  industrial  purposes  is  still  mainly  in  the  hands 
of  private  enterprise ;  but,  where  no  adequate  supply  is  thus 
forthcoming,  an  urban  sanitary  authority  may  provide  it, 
or  contract  for  its  provision,  and  charge  the  cost  by  a  rate 
on  the  houses  or  buildings  supplied.  Moreover,  every  rural 
sanitary  authority  must  see  that  there  is  a  due  supply  of 
water  to  every  dwelling-house  in  its  district,  and  must,  if 
there  is  not,  provide  and  inspect  periodically  a  supply  to 


POWERS    OF    DISTRICT    COUNCILS         321 

such  house,  if  it  can  be  done  at  a  cost  not  exceeding  two  pence 
a  week ;  and  a  duty  to  the  same  effect  may  be  imposed  by  the 
Local  Government  Board  on  an  urban  authority.  Moreover, 
any  sanitary  authority  may  take  steps  to  prevent  the  fouling 
of  the  water  supply  of  its  district  by  sewage,  poisonous 
escapes,  and  other  nuisances. 

(5)  Housing  of  the  Working  Classes.  —  One  of  the  most 
important  developements  of  State  policy  in  recent  years  has 
been  the  increased  attention  paid  to  the  improvement  and 
supply  of  working-class  dwellings ;  and  the  enforcement  of 
this  policy  is  left  mainly  to  the  sanitary  authorities.  Every 
sanitary  authority  must  periodically  inspect  the  houses  in  its 
district  with  a  view  to  discovering  those  unfit  for  human  habi- 
tation, may  order  the  repair  of  defects,  and,  if  this  order  is 
not  complied  with,  may  compel  the  demolition  of  the  building. 
Moreover,  when  buildings  are  being  demolished,  the  sanitary 
authority  may,  with  the  sanction  of  the  Local  Government 
Board,  take  up  a  scheme  for  the  better  re-arrangement  of  the 
area  in  question,  and  contribute  part  of  the  cost  out  of  its 
funds.  An  urban  sanitary  authority  may  go  further,  and 
undertake  the  destruction  of  an  unhealthy  area,  and,  with  the 
authority  of  the  Local  Government  Board,  publish  and 
carry  out  a  scheme  for  that  purpose;  while  any  sanitary 
authority  which  adopts  Part  III  of  the  Housing  of  the 
Working  Classes  Act,  may  provide  and  manage  tenements 
or  cottages  for  the  housing  of  the  working  population,  and 
a  rural  authority  may  be  compelled  to  take  steps  in  that 
direction.  Finally,  by  the  Housing  and  Town  Planning  Act 
of  1909,  any  borough  or  other  sanitary  authority  may  agree 
with  the  promoters  of  a  scheme  for  securing  the  sanitary  and 
artistic  developement  of  a  district  against  the  vandalism  of 
private  enterprise ;  whether  the  district  is  a  "  working-class  " 
district,  or  not. 

(6)  Ediircation.  —  The  council  of  every  urban  district 
having  a  population  of  20,000,  or  (in  the  case  of  a  municipal 
borough)  10,000,  is  the  authority  for  providing,  or  ensur- 
ing the  provision  of,  public  elementary  and  other  education 


822  LOCAL    GOVERNMENT 

under  the  Act  of  1902,  previously  described  (pp.  240,  241). 
In  this  capacity,  it  appoints  an  Education  Committee,  school 
managers,  and  attendance  officials  —  i.e.  persons  whose  duty 
it  is  to  see  that  children  attend  school  in  compliance  with  the 
requirements  of  the  current  Regulations.  It  also  levies  a 
rate  for  these  purposes  through  the  overseers. 

(7)  Public  Utilities  and  Amenities.  —  Under  this  head 
may  be  classed  a  miscellaneous  group  of  powers  which  belong 
to  urban  councils,  such  as  the  power  to  acquire  pleasure 
grounds  and  public  walks,  provide  baths  and  washhouses, 
and  even  (under  certain  conditions)  market-buildings,  erect 
public  clocks,  and  care  for  and  sanction  the  erection  of 
statues  and  monuments.  An  urban  sanitary  authority  has 
also  something  to  do  with  enforcing  provisions  for  safety  in 
places  of  public  entertainment.  Finally,  the  council  of  an 
urban  district  with  a  population  of  50,000,  automatically, 
and  one  with  a  population  of  10,000  if  it  so  desired  it,  had  a 
"  distress  committee  "  for  securing  employment  of  workmen 
under  the  Unemployed  Workmen's  Act  of  1905  (p.  317). 
But  the  provisions  of  this  Act  have,  happily,  fallen  into 
disuse ;  and  it  is  not  certain  that  they  will  be  revived. 

By-Laws 

In  order  to  enable  it  to  fulfil  its  duties,  every  sanitary 
authority  has,  within  strictly  defined  limits,  the  power  to 
make  hy-laws,  or  local  statutes,  binding  on  all  persons  within 
its  district,  and  regulations,  usually  on  matters  of  temporary 
interest,  which  affect  only  a  limited  class  of  persons,  such  as 
the  o^vners  of  land  in,  or  abutting  on,  a  particular  road. 
By-laws,  as  befits  their  larger  scope,  require  the  sanction  of 
the  Local  Government  Board,  or  other  central  authority; 
and  they  must  be  published  in  such  a  manner  as  to  become 
generally  known.  They  are  enforced,  by  summary  process, 
before  the  magistrates  (p.  253)  ;  but  no  penalty  above  £5 
can  be  imposed  for  a  single  offence  against  them,  or  forty 
shillings  a  day  for  continuing  offences. 


LOCAL    LEGISLATION  323 

District  Officials 

Every  sanitary  authority  has,  also,  in  addition  to  its 
elected  Chairman  (who  is,  ex  officio,  a  Justice  of  the  Peace 
during  his  tenure  of  office),  a  clerk,  and  various  other  officials 
to  carry  out  its  duties ;  but  there  is  a  good  deal  of  difference 
between  urban  and  rural  authorities  in  this  respect.  Thus, 
whilst  both  must  have  specially  appointed  Medical  Officers 
and  Inspectors  of  Nuisances  (though  the  offices  may  be  com- 
bined), only  the  urban  authority  need  have  a  Surveyor;  and 
he  may  also  be  the  Inspector  of  Nuisances.  Moreover,  the 
Clerk  and  Treasurer  of  a  rural  authority  are  the  same  per- 
sons as  the  Clerk  and  Treasurer  respectively  of  the  Guar- 
dians of  the  Poor  for  the  district ;  while  the  Mayor,  Town 
Clerk,  and  Treasurer  of  a  municipal  borough  are  Chairman, 
Clerk,  and  Treasurer  respectively  of  the  local  sanitary 
authority. 

Sanitary  Finance 

Finally,  in  respect  of  finance,  there  is  likewise  a  good  deal 
of  difference  between  urban  and  sanitary  authorities.  All 
sanitary  councils  are  corporations,  and  can  acquire  and  hold, 
subject  to  the  rule  previously  mentioned  (p.  310  n.),  all 
kinds  of  property,  raise  loans,  and  impose  rates.  But, 
whereas  an  urban  authority  directly  assesses,  levies,  and  col- 
lects its  rates  (either  "  general  district,"  for  general  pur- 
poses, or  "  private  improvement  "  on  persons  specially  bene- 
fited by  some  of  its  activities),  a  rural  authority  directs  its 
precept  to  the  overseers  of  its  constituent  parishes,  ordering 
them  to  levy  and  collect,  either  a  "  general  "  rate,  out  of  the 
poor-rate,  payable  by  all  the  parishes,  proportionately  in 
accordance  with  their  assessment,  or  a  "  special  "  rate  from 
some  particular  parish  or  "  contributory  place,"  to  cover 
expenses  incurred  for  the  special  benefit  of  that  parish  or 
place.  These  rates,  like  the  poor-rate  (p.  316),  are  primarily 
payable  by  the  occupiers  of  the  various  premises  in  the  dis- 
trict, subject  to  a  similar  right  of  appeal  (ultimately  to 
Quarter  Sessions)  to  that  described  in  dealing  with  the  poor- 


324  LOCAL    GOVERNMENT 

rate  (p.  316).  But  the  Public  Health  Act  provides  that 
sanitary  rates  shall  be  levied  only  upon  the  occupiers  of 
agricultural,  pastoral,  or  horticultural  areas  in  the  propor- 
tion of  one  quarter  of  those  assessed  on  buildings ;  and  this 
provision  worked  considerable  hardship  on  the  other  rate- 
payers of  the  district,  until,  in  the  year  1896,  The  Treasury, 
under  the  terms  of  the  Agricultural  Rates  Act,  which  ex- 
tended it  to  all  local  rates,  began  to  make  grants  to  the  Ex- 
chequer Contributions  Account  (p.  332),  to  supplement  the 
deficiency  caused  by  it.  All  loans  raised  by  sanitary  authori- 
ties require  the  sanction  of  the  Local  Government  Board, 
which  cannot  sanction  a  total  debt  in  any  case  of  more  than 
two  years'  assessable  value  of  the  district,  nor,  without  a 
public  enquiry,  more  than  one  year's.  The  loan,  when 
sanctioned,  may  be  raised  by  debentures  or  stock  in  the  open 
market,  or  borrowed  from  the  Public  Works  Loan  Commis- 
sioners under  the  provisions  of  the  Local  Loans  Acts.  A 
policy  has  recently  been  developed  to  a  considerable  extent 
of  granting,  not  loans,  but  subsidies  from  The  Treasury  in 
aid  of  the  various  activities  of  the  sanitary  authorities ;  but 
these  subsidies  are  generally  now  paid  through  the  County 
CouncHs  (p.  332). 


CHAPTER    XIV 

LOCAL  GOVERNMENT  (continued)  :  THE  COUNTIES 
AND  BOROUGHS 

It  has  been  before  explained  (p.  305),  that  the  county,  as 
an  English  institution,  dates  from  before  the  Norman  Con- 
quest. It  is  equally  true,  that  the  foundations  thus  laid 
were  greatly  strengthened,  and  a  firm  political  structure 
erected  upon  them,  by  the  genius  of  the  Anglo-Norman 
Kings,  who  converted  the  somewhat  vague  institution  of  the 
ancient  shire  court  into  a  solid  structure  supporting  the 
monarchy.  So  complete,  indeed,  was  their  work,  that  of  the 
ancient  self-governing  body  but  little  remained  at  the  close 
of  the  twelfth  century ;  and  it  was  soon  afterwards  a  matter 
of  dispute  who  exactly  were  the  persons  entitled,  or  (as  the 
contemporary  speech  put  it)  bound,  to  attend  the  shire 
court,  whose  ancient  sessions,  though  they  lingered  on  for 
centuries,  sank  ever  lower  in  practical  importance,  while  the 
assembly  of  landowners  to  receive  the  King's  Justices  on  cir- 
cuit (p.  256),  or,  later,  the  gatherings  of  freeholders  to 
elect  the  Parliamentary  "Knights  of  the  Shire"  (p.  126), 
or,  later  still,  the  quarterly  sessions  of  the  Justices  of  the 
Peace  (p.  256),  grew  more  and  more  conspicuous.  The  im- 
portance also  of  the  county  as  a  militia  centre,  ever  since 
the  revival  of  that  arm  in  Tudor  times,  has  been  already  men- 
tioned (p.  6).  It  is,  indeed,  only  in  quite  recent  times  that 
the  institution  of  County  Councils  has  made  the  county  once 
again  a  unit  of  real  self-government. 

Changes  in  County  Goveenment 

But  the  great  changes  which  took  place  in  the  twelfth  and 
thirteenth  centuries  did  more  than  convert  the  county  into 


326  LOCAL    GOVERNMENT 

a  local  branch  of  the  central  government.  They  destroyed 
the  more  ancient  type  of  that  government,  which  was  exer- 
cised mainly  through  a  single  official. 

Decline  of  the  Sheriff 

This  official  was  the  Sheriff  ("shire-reeve"),  the  repre- 
sentative of  royal  claims  long  before  the  Norman  Conquest, 
but  gi'eatly  strengthened  in  power  by  the  increase  of  those 
claims  which  the  Conquest  brought  about.  By  the  middle 
of  the  twelfth  century,  the  Sheriff  had  become  a  great  mili- 
tary, financial,  judicial,  and  police  potentate,  whose  office 
tended  to  become,  in  accordance  with  feudal  ideas,  hereditary. 
Fortunately  for  the  unity  of  the  kingdom,  Henry  II  saw  and 
boldly  challenged  the  growing  danger ;  and  from  his  Inquest, 
or  enquiry  into  the  misdeeds  of  the  sheriffs,  in  1170,  dates  a 
change  which  has  gradually  rendered  the  office,  despite  its 
picturesque  trappings,  one  of  little  real  importance,  though 
of  considerable  responsibility.  Most  of  the  Sheriff's  financial 
duties  were  taken  over  by  the  Exchequer  officials  (p.  28),  who 
directly  collected  the  growing  revenue  from  Parli<imentary 
taxation.  The  Great  Charter  of  1215  forbide  the  Sheriff  to 
act  as  a  judge  in  his  own  county.  The  institution  of  the 
Grand  Jury  (p.  254)  had  previously  deprived  him  of  his 
most  important  duties  as  Crown  prosecutor.  It  is  true,  that 
the  institution  of  Parliamentary  elections  in  the  thirteenth 
century  (p.  133)  gave  him  a  position  as  "  returning  officer," 
which  he  still  partly  holds ;  but  this  was  more  than  counter- 
balanced, two  centuries  later,  by  the  institution  of  Lord 
Lieutenants,  permanent  royal  officials  at  the  head  of  the 
militia  or  citizen  forces  of  the  county  (p.  6),  which  had 
hitherto  been  led  by  the  Sheriff.  To  the  Sheriff  still  remain 
only  the  execution  of  the  judgments,  criminal  and  civil,  of 
the  King's  Courts  of  Justice,  the  summoning  of  juries,  and 
the  reception  of  and  attendance  on  the  King's  Judges  on  cir- 
cuit, and  a  few  other  miscellaneous  duties.  Most  of  these 
duties,  except  the  purely  ceremonial  ones,  are  performed  by 
deputy ;  but  to  the  Sheriff  attaches  the  unpleasant  liability 


ANCIENT    COUNTY    OFFICIALS  327 

of  being  personally  responsible,  unlike  an  ordinary  Govern- 
ment official,  for  every  error  of  his  subordinates.  Moreover, 
the  office  is  compulsory  and  unpaid;  though  it  is,  on  the 
other  hand,  annual  only. 

The  Coroner 

The  Coroner  is  also  an  ancient  county  official,  though 
much  less  ancient  than  the  Sheriff;  being,  apparently,  one 
of  the  checks  devised  at  the  end  of  the  twelfth  century  to 
counteract  the  power  of  that  personage.  As  his  name  im- 
plies, he  is  a  royal  official;  but,  by  a  very  curious  anomaly, 
his  office  early  became  elective,  though  it  was  remunerated 
by  substantial  fees ;  and  it  is  only  quite  recent  legislation  that 
has  transferred  the  appointment  of  coroners  to  the  County 
Councils  (p.  329).  Unlike  the  office  of  Sheriff,  too,  that  of 
the  Coroner  is,  in  theory  and  practice,  for  life ;  though  he 
may  be  removed  by  the  Lord  Chancellor  or  the  Court,  on 
conviction  of  an  offence  in  the  performance  of  his  duties. 
These  are,  mainly,  to  hold  inquests,  or  enquiries,  by  a  jury 
of  not  less  than  twelve  nor  more  than  twenty-three  "  good 
and  lawful  men,"  in  all  cases  of  sudden  or  unexplained  death, 
and  on  deaths  in  prison,  a  baby  farm,  or  a  lunatic  asylum 
unless  certain  medical  certificates  are  forthcoming,  as  well 
as  on  "  treasure  trove,"  i.e.  valuables  believed  to  have  been 
buried  for  security,  of  which  the  owner  is  unknown.  In  the 
latter  case,  the  property,  if  the  owner  still  cannot  be  found, 
goes  to  the  Crown;  while,  as  we  have  seen  (p.  255),  the  ver- 
dict of  murder  or  manslaughter  found  by  a  coroner's  jury 
against  a  named  person  may  be  made  the  basis  of  an 
indictment. 

Justices  of  the  Peace 

But  the  most  important  of  all  the  county  authorities  from 
the  fourteenth  century  to  the  late  nineteenth  were  the  Jus- 
tices of  the  Peace,  or  magistrates,  who,  as  we  have  also  seen 
(p.  24<9),  were  created,  soon  after  the  Barons'  War,  for  the 
purpose  of  arresting  malefactors  and  sending  them  before 


328  LOCAL    GOVERNMENT 

the  King's  Justices  of  Assize,  and,  somewhat  later,  of  them- 
selves hearing  and  determining  felonies  and  breaches  of  the 
peace.  Of  their  work  in  these  capacities  we  have  already 
spoken  (p.  253)  ;  but  it  should  be  remembered  that,  very 
soon  after  their  institution,  a  large  number  of  administrative 
duties,  such  as  the  fixing  of  labourers'  wages,  the  settling  of 
disputes  between  masters  and  workmen,  the  enforcement  of 
the  apprenticeship  laws,  the  supervision  of  the  Poor  Law  sys- 
tem (p.  308),  the  enforcement  of  the  repair  of  roads  and 
bridges,  the  issuing  of  liquor  and  other  licenses,  the  inspection 
of  gaols  and  lunatic  asylums,  the  preparation  of  voters'  lists, 
the  administration  of  oaths,  even  some  duties  in  respect  of 
education,  and,  above  all,  the  control  and  management  of  the 
county  police,  began  to  be  imposed  upon  them.  Some  of 
these  duties  have  now  disappeared  altogether ;  others  have 
been  transferred  to  the  County  Councils  to  be  hereafter 
(p.  329)  described.  The  control  of  the  county  police  is  now 
in  the  hands  of  a  Standing  Joint  Committee,  composed  of 
Justices  of  the  Peace  and  county  councillors  in  equal  num- 
bers. Still,  the  Justices  of  the  Peace  have,  in  addition  to 
their  judicial  and  strictly  magisterial  duties  in  Quarter  and 
Petty  Sessions,  and  as  examining  magistrates,  the  very  re- 
sponsible duty  of  issuing  and  renewing  licenses,  of  which  the 
most  important  are  those  for  the  making  and  sale  of  intoxi- 
cating liquors.  New  licenses  granted  for  such  sales  require 
confirmation  by  a  Licensing  Committee  annually  appointed 
by  Quarter  Sessions ;  and  the  question  of  the  renewal  of  any 
licence  which  appears  to  the  Licensing  Justices  to  be  unneces- 
sary, is  referred  by  them  to  this  Committee,  which,  if  it 
refuses  to  renew  the  licence,  has  to  assess  the  compensation 
payable  to  the  parties  interested.  But  the  powers  of  the 
Justices  as  a  rating  authority,  though  not  as  a  tribunal  for 
hearing  appeals  from  rating  lists,  have  now  been  transferred 
to  the  County  Councils. 


THE    MAGISTRATES  329 

Clerk  of  the  Peace 

The  Clerk  of  the  Peace,  another  ancient  county  officer, 
need  not  detain  us  long.  He  was  originally  appointed  by  the 
liOrd  Lieutenant,  in  the  latter's  capacity  of  ciostos  rotulorum, 
or  guardian  of  the  county  records,  to  take  charge  of  all 
county  documents,  but  rapidly  became  the  mouthpiece  and 
business  man  of  the  Justices  of  the  Peace  in  their  vast  and 
miscellaneous  business.  At  one  time,  the  property  of  the 
county  was  deemed  to  be  legally  vested  in  him;  for  neither 
the  county  itself,  nor  the  Justices  of  the  Peace,  were  ever  a 
"  corporation  "  or  legal  person.  But  the  property  of  the 
county  has  now  (with  certain  unimportant  exceptions)  been 
transferred  to  the  County  Council ;  while  the  appointment  of 
the  Clerk  of  the  Peace  is  vested  in  the  Standing  Joint  Com- 
mittee above  referred  to  (p.  328). 

Justices'  Clerks 

Moreover,  each  Petty  Sessional  Division  of  the  Justices 
(p.  253)  has  its  own  clerk,  who  acts  as  its  mouthpiece  and 
recorder  for  the  Petty  Sessional  Division,  and  is  appointed 
by  them,  but  paid  by  the  County  Council.  The  Clerk  of  the 
Peace  may  not  act  as  clerk  to  any  Petty  Sessional  Division  in 
his  county;  nor  may  any  Justices'  Clerk  act  as  Clerk  to  the 
Guardians  of  any  Poor  Law  Union  in  which  any  part  of  his 
Petty  Sessional  Division  is  situated. 

County  Councils 

So  long  as  the  bulk  of  the  administrative  business  of  the 
county  was  done  by  magistrates  who  held  office  from,  and  at 
the  pleasure  of,  the  Crown,  the  county  could  hardly  be  said 
to  be  a  self-governing  institution,  in  the  strict  sense.  No 
doubt,  in  selecting  Justices  of  the  Peace  for  appointment, 
considerable  attention  was  paid  to  local  claims ;  and,  as  a 
matter  of  fact,  in  recent  years,  no  Justice  of  the  Peace  has 
been  removed  from  office,  except  on  grounds  of  personal 
delinquency. 


330  LOCAL    GOVERNMENT 

But  there  was  a  good  deal  of  feeling  on  the  subject  of 
party  appointments ;  and,  for  that  and  other  reasons,  it  was 
determined  by  Parliament,  in  the  year  1888,  to  set  up  a  new 
system  of  representative  county  councils,  for  the  administra- 
tion of  county,  and  especially  financial,  business.  Accord- 
ingly there  is,  for  each  county  in  England  and  Wales,^  a 
Council  consisting  of  a  number  of  members  fixed  by  the  Local 
Government  Board,  and  containing  representatives,  not  only 
from  the  rural  districts  comprised  within  the  county,  but 
also  from  such  of  the  boroughs  as  are  not  what  are 
called  "county  boroughs"  (p.  344).  Owing  to  the  intri- 
cacies of  electoral  law,  the  right  to  vote  for  the  election  of 
county  councillors  was,  until  recently,  somewhat  obscure  on 
some  points ;  but  the  new  Reform  Bill,  if  passed  into  law  in 
its  present  form,  will  simplify  matters,  by  giving  to  every 
occupant  of  land  of  full  age  within  the  county,  irrespective 
of  sex  or  marriage,  a  vote. 

County  Disteicts 

The  constituencies  for  the  councils  are  either  boroughs 
(other  than  "county  boroughs"),  or  "county  divisions"; 
each  of  which  must  be  subdivided  into  "  wards  "  or  "  dis- 
tricts," so  as  to  give  one  member  to  each. 

County  Councillors 

Any  person  who  is  qualified  to  he  a  borough  councillor 
(p.  337)  within  the  county,  or  who  is  a  peer  owning 
land  within  the  county,  or  who  is  registered  as  a  parlia- 
mentary elector  for  the  county  by  an  ownership  qualifica- 
tion,^ is  entitled  to  be  elected  a  county  councillor;  neither 
marriage  nor  sex  being  a  bar.  County  councillors  are  elected 
for  three  years ;  and  all  retire  together. 

*  Again,  as  so  often,  this  statement  of  a  general  rule  must  be  qualified  in 
detail.  There  are,  as  a  matter  of  fact,  64  county  councils  in  England  and  Wales, 
though  there  are  only  52  historical  counties;  a  few  of  the  latter  being  divided  for 
administrative  purposes. 

^  If  the  new  Reform  Bill  is  passed  in  its  present  form,  this  qualification  will 
disappear,  along  with  the  ownership  franchise. 


COUNTY    COUNCILS  331 

County  Aldermen 

Besides  ordinary  councillors,  however,  a  county  council 
comprises  "  aldermen,"  one  third  in  number  of  the  ordinary 
councillors,  and  elected  by  them  for  a  period  of  six  years, 
but  retiring  by  halves,  so  that  there  is  an  election  of  aldermen 
every  three  years.  The  council  has  also  a  Chairman,  elected 
annually  by  the  whole  council.  Both  chairmen  and  alder- 
men may  be  chosen  from  inside  or  outside  the  council,  from 
any  persons  qualified  to  be  councillors ;  but  if  a  councillor  is 
elected  an  alderman,  his  seat  as  an  ordinary  councillor  be- 
comes vacant. 

County  Officials 

The  Clerk  of  the  Peace  for  the  county  acts,  as  we  have 
said,  as  Clerk  of  the  Council ;  but  the  County  Council  has  its 
own  Treasurer,  as  well  as  its  Medical  Officers  of  Health, 
Public  Analysts,  and  other  officials,  who  are  not  only  ex- 
cluded from  membership  of  the  council  (as  in  the  case  of 
other  local  government  officials),  but  may  not  sit  in 
Parliament. 

Duties  of  County  Councils 

The  duties  of  the  county  councils,  like  those  of  the  Jus- 
tices of  the  Peace  whose  place  they  have  largely  taken, ^  are 
of  a  miscellaneous  character.  They  comprise  the  control  and 
maintenance  of  the  "  main  "  roads  in  the  county,  except  so 
far  as  these  have  been  handed  over  to  the  district  councils 
(p.  318),  the  prevention  of  pollution  of  rivers,  the  conserv- 
ancy of  fish,  the  enforcement  of  the  Acts  relating  to  the 
contagious  diseases  of  animals  and  the  protection  of  wild 
birds,  the  provision  of  pauper  lunatic  asylums,  court  houses, 
and  other  official  buildings  of  the  county,  the  safe  custody  of 
the  numerous  records  of  the  county,  the  preparation  and 
maintenance    of    the    parliamentary    and    local    government 

1  Of  course  It  should  not  be  forgotten  that  a  Justice  of  the  Peace  may  be,  and 
frequently  is,  elected  as  a  county  councillor. 


332  LOCAL    GOVERNMENT 

electoral  registers,  and  the  enforcement  of  the  statutes  re- 
lating to  weights  and  measures.  Under  the  Education  Act 
of  1902,  the  County  Council  is  the  education  authority 
throughout  its  county;  except  for  boroughs  containing  at 
least  10,000  inhabitants,  and  urban  districts  containing  at 
least  20,000.  In  this  capacity,  it  appoints  an  Education 
Committee,  as  well  as  enforces  attendance  and  provides 
school  buildings,  in  manner  previously  described  (p.  241). 
The  County  Council  has  a  good  deal  to  do  with  supervising 
the  work  of,  and  settling  disputes  (such  as  boundary  ques- 
tions) between,  the  smaller  local  government  divisions  within 
its  area.  Finally,  it  has  heavy  and  important  duties  with 
regard  to  local  finance. 

County  Finance 

For  the  County  Council  has  not,  like  most  local  government 
authorities,  merely  to  provide  for  its  own  financial  needs.  It 
has  also  to  provide,  to  a  large  extent,  for  the  wants  of  other 
official  bodies.  Thus,  the  education  authorities,  other  than 
the  boroughs  and  urban  districts,  the  local  judicial  authori- 
ties, i.e.  the  Quarter  and  Petty  Sessions  (p.  253),  and  the 
police  authorities  (other  than  the  boroughs  having  their  own 
separate  police  forces),  all  look  to  the  County  Council  for 
their  expenses.  Moreover,  a  very  important  branch  of  the 
County  Council's  financial  duties  consists  in  the  receipt  and 
distribution  of  the  Exchequer  Contribution  Account,  that  is, 
the  large  sums  of  money  granted  by  the  Imperial  Treasury 
for  various  specified  purposes,  such  as  education,  road  main- 
tenance, small  holdings,  and  sanatoria.  Some  of  these, 
notably  the  large  grants  for  education  purposes,  police  pur- 
poses, and  in  relief  of  agricultural  rates  (pp.  323,  324),  are 
made  by  direct  subvention ;  others,  such  as  the  proceeds  from 
"local  taxation  licenses"  (p.  201),  are  collected  by  the 
county  authorities,  and  carried  (subject  to  the  claims  of  The 
Treasury)  to  their  Exchequer  Contribution  Accounts,  which 
are  earmarked  for  specific  purposes.  The  magnitude  of 
these  transactions  may  be  gathered  from  the  fact  that,  in 


COUNTY    FINANCE  333 

the  year  1912-13,  the  total  sums  thus  received  by  the  county 
authorities  (including  the  "county  boroughs")  was  nearly 
£22,000,000. 

To  meet  the  requirements  thus  charged  on  the  county 
councils,  beyond  the  Exchequer  grants  and  the  income  from 
the  not  very  large  amount  of  county  property  vested  in  the 
councils,  and  a  small  miscellaneous  income  from  fines,  fees, 
and  similar  casualties,  the  councils  have  power  to  raise 
money  by  two  chief  means,  viz.  loans  for  permanent  expend- 
iture, and  rates  for  annual  outgoings. 

County  Loans 

County  loans,  which  can  only  be  raised  with  the  consent 
of  the  Local  Government  Board,  and  must  not,  without  the 
consent  of  Parliament,  except  for  small  holdings,  exceed  one- 
tenth  of  the  rateable  value  of  the  land  and  buildings  within 
the  county,  are  raised  by  the  issue  of  "  county  stock,"  or  by 
debentures  or  annuities  under  the  Local  Loans  Acts,  or  by 
mortgage;  and  they  must  be  made  repayable  by  instalments 
extending  over  a  period  of  not  more  than  thirty  years,  though 
the  instalments  may  be  paid  into  an  accumulating  or  "  sink- 
ing "  fund. 

County  Rates 

For  the  purpose  of  levying  rates,  the  County  Council  has 
its  own  Assessment  Committee,  which  may  or  may  not  accept 
the  valuation  of  the  Union  Assessment  Committee  (p.  316)  ; 
in  fact,  it  usually  does  not,  to  avoid  jealousies  between  the 
different  Unions  in  the  county.  Having  ascertained  its  prob- 
able requirements  for  the  ensuing  half-year,  the  Council 
directs  a  "  fair  and  equal  "  rate  to  be  assessed  on  each  parish 
in  the  county  (other  than  those  within  "  county  boroughs  "), 
and  sends  a  precept  to  the  Guardians  of  the  Union  in  which 
such  parish  is  situated,  who  direct  the  overseers  to  levy  it 
along  with,  and  in  the  same  manner  as,  the  poor-rate 
(p.  316).  But  considerable  complication  is  caused  by  the 
fact  that,  quite  apart  from  the  "  county  boroughs  "  (which 


334  LOCAL    GOVERNMENT 

are  outside  the  sphere  of  the  county  councils'  jurisdiction), 
there  are  other  privileged  boroughs,  some  of  which  have  their 
own  Quarter  Sessions  and  "separate  police  forces,  whilst  others 
have  separate  police  forces  only ;  for  the  parishes  in  these  do 
not  contribute  to  the  Quarter  Sessions  or  police  forces  of 
the  county,  as  the  case  may  be.  It  is  not  surprising,  there- 
fore, to  find  that  every  county  council  must,  at  the  beginning 
and  in  the  middle  of  each  financial  year,  make  a  systematic 
survey  of  its  financial  resources,  prepared  by  Its  Finance 
Committee,  and  that  no  payment  (except  under  an  Act  of 
Parliament  or  order  of  a  competent  Court)  can  be  made 
without  an  order  of  the  council  signed  by  three  members  of 
this  committee,  nor  can  any  liability  exceeding  £50  be  In- 
curred without  an  estimate  submitted  by  the  committee. 

Boroughs 

Last,  but,  from  the  point  of  view  of  self-government,  high- 
est in  the  scheme  of  English  local  Institutions,  comes  the 
borough.  We  have  already  seen  (p.  25)  that,  by  ways  the 
origin  of  which  is  obscure,  many  towns  or  "  townships,"  ^ 
or  groups  of  towns  or  townships,  in  ancient  England  had, 
even  before  the  Norman  Conquest,  acquired,  under  the  title 
of  "  boroughs,"  peculiar  franchises  or  privileges,  especially 
in  the  matter  of  self-government,  which  made  them  a  class 
apart.  The  name  "  borough,"  which  means  a  strong,  or 
fortified  place,  appears  to  give  us  a  hint  as  to  the  original 
character  of  these  places ;  "  but  very  early  they  lost  any 
special  military  character  they  may  once  have  had,  and 
became  noted  chiefly  as  industrial  centres.  As  such,  they 
(or  some  of  them)  were,  as  we  have  seen,  given  special  rep- 
resentation in  the  Parliament  of  the  thirteenth  century ;  and 

1  It  is  only  a  modern  fashion  which  confines  the  name  "town"  to  a  large 
centre  of  population,  and  contrasts  it  with  a  "village."  For  many  centuries, 
"town"  and  "village"  were  the  same  thing;  and  a  "township"  was  not  a  little 
town,  but  the  area  of  a  town  or  village,  or,  in  legal  documents,  the  inhabitants 
of  a  town  or  village. 

2  Even  this  derivation  does  not  really  help  us  to  distinguish  a  borough  from 
an  ordinary  town;  because  a  "town"  or  "tun"  was,  originally,  a  stockaded  or 
enclosed  space. 


BOROUGHS  335 

this  peculiarity  they  continued  to  retain,  with  disastrous 
results,  as  we  have  also  seen  (p.  127),  both  to  their  parlia- 
mentary and  their  civic  character,  down  to  the  Reform  Act  of 
1832.  Since  that  date,  parliamentary  and  civic  (or  mu- 
nicipal) boroughs  have  become  more  and  more  distinct;  until 
they  now  share  little  more  than  the  name.  The  parliamen- 
tary borough  is  regulated  by  the  Representation  of  the 
People  Acts,  and  means  little  more  than  an  urban  area  send- 
ing its  own  member  to  Parliament.  The  municipal  borough 
is  a  special  area  of  local  self-government,  regulated  by  the 
Municipal  Corporations  Acts,  and  having  an  elaborate 
scheme  of  special  local  institutions,  which  we  must  now  briefly 
describe.  It  is  mostly  to  be  found  in  the  Municipal  Corpora- 
tions Act  of  1882,  which  re-enacted,  with  considerable  amend- 
ments, the  great  Municipal  Reform  Act  of  1835. 

The  Borough  a  "  Corporation  " 

The  first  great  distinction  between  a  borough  and  a  county 
or  other  area  of  local  government  is,  that  it  is,  and  has  for 
centuries  been,  a  "  corporation,"  or  legal  person,  capable  of 
owning  property,  bringing  actions,  being  sued,  and  otherwise 
acting  more  or  less  as  an  individual ;  whilst  a  county  and  a 
parish  were  and  are  not.^  This  difference,  dry  and  pedan- 
tic as  it  sounds  to  the  layman,  is  of  immense  interest,  both 
historical  and  practical,  to  the  lawyer;  for  he  knows  how 
difficult  it  was  to  reach,  and  how  important  it  was  in  the 
growth  of  independent  self-government.  For  instance,  one 
great  reason  why  a  considerable  number  of  boroughs  have, 
notwithstanding  the  bad  period  of  corruption,  contrived  to 
acquire  and  retain  very  valuable  property  for  civic  purposes, 
is  just  because,  being  "persons,"  they  could  do  so;  while 
the  "  men  "  of  the  county  or  parish  were  a  vague,  uncertain 
body,  with  no  rights,  though  they  had  liabilities,  which  could 
not.  Again,  county  and  parish  councils  can  claim  no  powers 
except  those  expressly  conferred  on  them  by  statute ;  because 

1  County  and  parish  councils  are  corporations;  but  they  are  very  modern 
institutions. 


336  LOCAL    GOVERNMENT 

they  are  the  creation  of  modern  statutes  which  define  their 
powers.  But  many  boroughs  are  very  ancient;  and  it  has 
been  decided,  that  the  modern  statutes  and  charters  affecting 
them,  though  they  confer  new  powers,  do  not  necessarily  take 
away  the  older  ones,  acquired  by  old  charters  or  long  usage 
("prescription").  Thus,  although  a  county  council,  like 
a  borough,  has  by  statute  power  to  make  by-laws  "  for  the 
good  rule  and  government  "  of  its  county,  it  does  not  by  any 
means  follow,  that  any  claim  it  may  put  forward  to  exercise 
this  power,  will  be  judged  by  the  same  standard  as  that 
applied  to  a  similar  claim  by  an  ancient  borough.  For, 
though  all  newly  created  boroughs  have  for  centuries  been 
created  by  royal  charters,  which  define  their  powers,  some 
very  ancient  boroughs  exercise,  by  custom  or  "  prescription," 
rights  for  which  no  express  authority  can  be  shown. 

The  corporation  of  a  borough  consists  of  mayor,  alder- 
men, and  burgesses ;  the  last  being  represented,  for  almost 
all  purposes  of  local  government,  by  a  council  elected  by 
them.  In  common  speech,  the  mayor,  aldermen,  and  council 
are  spoken  of  as  "  the  corporation  '* ;  in  strict  law,  they  are 
only  the  governing  body  of  the  corporation. 

The  Mayor 

The  mayor  is  elected  annually  by  the  members  of  the 
council,  not  necessarily  (though  usually)  from  among  them- 
selves, but  from  persons  qualified  to  be  councillors  (p.  337). 
He  is  not  only  chairman  of  the  council  at  all  its  meetings, 
but  is  entitled  to  precedence  in  the  borough  on  all  occasions 
of  municipal  business ;  except  that,  although  he  is,  ex  officio, 
a  Justice  of  the  Peace  for  the  borough  during  his  year  of 
office  and  the  next,  he  does  not  take  precedence  of  the  stipen- 
diary magistrate  (p.  343),  if  there  is  one.  He  may  be,  but 
seldom  is,  allowed  a  sum  of  money  out  of  the  borough  funds, 
for  the  expenses  of  his  office.  There  is  a  good  deal  of  cere- 
mony about  the  office  of  Mayor,  including  robes,  mace,  and 
other  ancient  symbols  of  authority. 


BOROUGH    COUNCILS  337 

Aldermen 

The  aldermen,  one  third  in  number  of  the  ordinary  coun- 
cillors, are  elected  by  them  and  their  fellow  aldermen,  for  a 
period  of  six  years;  one-half  of  them  retiring  every  three 
years.  They  are  members  of  the  council,  and  require  the 
same  qualifications  as  ordinary  councillors ;  but  they  do  not 
sit  for  any  particular  "  ward,"  or  electoral  division  of  the 
borough,  though,  in  some  boroughs,  it  is  customary  to  allot 
each  alderman  to  a  particular  ward.  Their  only  special  duty 
appears  to  be  that  of  acting  as  "  returning  officers  "  (p.  133) 
at  ward  elections ;  but  they  take  precedence  over  ordinary 
councillors,  and  are  sometimes  distinguished  by  a  special 
costume.  Like  almost  all  other  municipal  office-holders,  they 
are  re-eligible;  but  they  cannot,  as  the  Mayor  can,  be  com- 
pelled to  serve. 

The  Councillors 

The  borough  council  is  a  body  consisting  of  such  multiple 
of  three  members  as  may  be  fixed  by  the  borough  charter  or 
Order  in  Council,  elected  for  three  years  by  the  burgesses, 
from  their  own  ranks, ^  or  from  persons  who  have  resided  for 
twelve  months  in  the  borough,  but  retiring  annually  by 
thirds,  so  that  there  is  an  election  each  year.  They  are 
elected  by  the  "  wards  "  into  which  the  borough  is  divided 
for  election  purposes;  three  (or  a  multiple  of  three)  for 
each.  But  no  person  in  Holy  Orders,  nor  the  regular  min- 
ister of  a  dissenting  congregation,  nor  any  person  directly 
or  indirectly  interested  in  any  contract  with  the  council,  nor 
any  bankrupt,  nor  person  recently  found  guilty  of  corrupt 
practices  at  an  election  (p.  137),  can  be  elected  or  sit;  even 
though  some  of  these  may  act  as  burgesses.  There  is  no 
disqualification  of  sex  or  marriage;  but  a  councillor  must 
have  attained  the  full  legal  age  of  twenty-one.  Municipal 
and  all  other  local  government  elections  are  conducted  under 

^  At  least  this  will  be  so  when  the  new  Representation  of  the  People  Bill 
becomes  law.  At  present  a  councillor  need  not  have  quite  all  the  qualifications 
of  a  burgess. 


338  LOCAL    GOVERNMENT 

the  provisions  of  the  Ballot  Act  (p.  134),  substantially  in 
the  same  manner  as,  and  subject  to  similar  restrictions  to, 
parliamentary  elections. 

The  Burgesses 

The  burgesses  are,  substantially,  the  rate-payers  of  the 
borough,  male  or  female,  of  full  legal  age,  without  disqualifi- 
cation for  marriage  or  for  any  other  cause,  except  alienage 
or  conviction  for  felony  or  corrupt  practices.  In  order  to 
exercise  their  rights,  they  must  be  enrolled  upon  the  "  local 
government  register,"  which  is  annually  made  up  by  the 
Town  Clerk ;  and  their  most  important  duty  is  to  vote  for 
the  election  of  councillors  in  the  ward  for  which  they  are 
registered.  They  are,  however,  as  has  been  said,  part  of  the 
corporation,  and,  as  such,  entitled  to  take  part  in  town's 
meetings,  and  to  make  representations,  and  otherwise  pro- 
test, against  any  injury  to  the  borough  property  or  privi- 
leges. Occasionally  also,  they  must  be  consulted  before  the 
Council  commits  itself  to  special  expenditure  (p.  840). 

The  Auditors 

In  addition  to  its  mayor,  aldermen,  and  council,  a  borough 
has  three  auditors,  for  whom  no  parallel  is  found  in  other 
local  government  bodies.  One  is  appointed  annually  by  the 
mayor,  from  among  the  members  of  the  council;  the  other 
two  are  elected  by  the  burgesses  as  a  whole,  from  persons 
who  are  qualified  to  be,  but  are  not,  members  of  the  council, 
nor  acting  as  Town  Clerk  or  Borough  Treasurer.  Their 
duty  is  to  audit  half-yearly  the  accounts  of  the  borough, 
before  they  are  submitted  to  the  Local  Government  Board 
(p.  282). 

Borough  Officials 

Besides  the  Auditors,  every  borough  has,  as  such,  a  Town 
Clerk  and  a  Treasurer ;  and,  as  an  urban  sanitary  authority, 
it  has  a  Medical  Officer  of  Health,  an  Inspector  of  Nuisances, 
a  Surveyor,  and  similar  officials  (p.  328).     But  these  persons 


POWERS    OF    BOROUGH    COUNCILS         339 

are  appointed  by  the  council,  and  are  subject  to  limitations 
similar  to  those  affecting  county  council  officials  (p.  331)  ; 
except  that  they  are  not  legally  excluded  from  sitting  in 
Parliament. 

Powers  of  Council 

Fortunately,  the  numerous  powers  and  duties  of  a  bor- 
ough council  can  be  largely  disposed  of  by  reference  to  pre- 
vious descriptions  in  this  book.  As  an  urban  sanitary  au- 
thority, every  borough  council  has  the  powers  and  duties  of 
an  urban  district  council,  including  the  making  of  by-laws 
(p.  323).  As  an  education  authority,  the  council  of  every 
borough  of  more  than  10,000  inhabitants  has  the  same 
powers  and  duties  as  an  urban  district  council  whose  district 
contains  more  than  20,000  (p.  321).  It  has  also  special 
powers,  under  the  Town  Police  Clauses  Act  of  1847,  of  regu- 
lating traffic,  preventing  or  extinguishing  the  outbreak  of 
fires,  and  the  licensing  and  control  of  hackney  carriages, 
which  are  exercised  by  some,  though  not  all,  ordinary  urban 
district  councils.  It  may  also,  with  the  approval  of  the 
burgesses,  proceed  to  act  on  the  provisions  of  various 
"  adoptive  "  Acts  of  Parliament,  in  the  provision  of  public 
libraries,  baths  and  washhouses,  and  similar  public  ameni- 
ties (p.  322).  But,  beyond  all  this,  it  has  the  general 
power  of  making  by-laws  "  for  the  good  rule  and  govern- 
ment of  the  borough";  and,  as  has  been  hinted  (p.  336), 
its  powers  in  this  respect  have  received  a  wide  interpretation. 

Municipal,  By-laws 

It  is  well,  therefore,  to  notice,  that  a  by-law  of  this  kind, 
like  that  made  under  a  similar  power  by  a  county  council, 
must  be  passed  at  a  meeting  at  which  two  thirds  of  the  full 
council  are  present;  and  it  has  no  effect  until  a  copy  of  it 
has  been  affixed  to  the  Town  Hall  for  forty  days,  and  an- 
other sent  to  the  Home  Office,  which,  within  that  time,  may 
disallow  it.  On  the  other  hand,  no  by-law  made  by  any  other 
local  government  authority  has  any  force  within  a  borough. 


340  LOCAL    GOVERNMENT 

Enforcement  of  By-laws 

The  by-laws  of  a  borough,  like  all  by-laws  of  local  gov- 
ernment authorities,  are  usually  enforced  by  the  ordinary 
police  force,  whose  members  of  various  grades  often  conduct 
in  person  prosecutions  for  breach  of  them  before  the  Justices 
of  the  Peace  in  Petty  Sessions,  in  the  less  important  cases ; 
though  there  is  rather  a  feeling  against  allowing  a  police 
constable  to  double  the  part  of  witness  and  prosecuting 
counsel.  But,  as  we  shall  see  in  a  moment,  not  every  borough 
has  its  own  police  force ;  many  of  them  are  "  policed  "  by  the 
county,  and  contribute  to  the  county  police  rate.  Only,  it 
is  not  generally  known,  that  every  borough  is  bound  to  keep 
in  reserve  a  stock  of  "  special  constables,"  appointed  annu- 
ally by  two  Justices,  and  consisting  of  as  many  inhabitants 
of  the  borough  as  may  be  deemed  necessary,  and  are  not 
exempt  from  service.  They  do  not,  however,  act  except 
under  the  special  warrant  of  a  Justice,  which  must  state  that, 
in  the  maker's  opinion,  the  ordinary  police  force  is  insuffi- 
cient to  maintain  the  peace.  These  special  constables  have 
rendered  valuable  service  during  the  great  war. 

Borough  Finance 

The  last  important  duty,  which  is  incumbent  on  all  bor- 
oughs alike,  is  the  provision  of  funds  for  the  performance  of 
the  council's  duties,  in  its  dual  capacity  of  municipal  and 
sanitary  authority,  as  well  as  for  the  contributions  which  all 
except  "  county  boroughs  "  have  to  make  to  county  needs. 
Some  boroughs,  as  has  been  stated,  have  a  good  deal  of  prop- 
erty, derived  from  ancient  sources,  the  income  of  which  may 
be,  however,  earmarked  for  special  pui'poses.  The  larger 
boroughs  receive  Treasury  grants  (p.  332)  in  respect  of 
such  services  as  education  and  police,  usually  through  the 
County  Council.  In  addition  to  its  loan-raising  powers  as 
a  sanitary  authority  (p.  324),  a  borough  council  may  also, 
with  the  consent  of  the  Local  Government  Board,  raise  loans 


BOROUGH    FINANCE  341 

for  strictly  defined  municipal  purposes,  such  as  the  purchase 
of  sites  for,  and  the  erection  of,  municipal  buildings. 

Borough  Rates 

But  the  bulk  of  the  income  of  an  ordinary  borough  is  de- 
rived from  the  borough  rate,  which  is  levied  by  the  overseers, 
on  the  demand  of  the  borough  council,  from  each  parish 
within  the  borough,  on  the  basis  of  the  pooi'-rate  (p.  316)  ; 
unless  the  council  chooses  to  order  an  independent  valuation. 
But  an  appeal  lies  by  any  person  aggrieved  by  the  incidence 
of  such  rate,  as  in  the  case  of  a  county  rate,  to  the  Quarter 
Sessions,  either  of  the  borough  itself,  held  by  the  Recorder 
(p.  343),  if  it  is  a  "  Quarter  Sessions  "  borough,  or  to  the 
Quarter  Sessions  of  the  county  in  which  the  borough  is  situ- 
ated. All  income  received  by  the  borough  council,  unless 
earmarked  for  special  purposes,  is  paid  into  the  borough 
fund;  and  no  payment  thereout,  except  for  regular  out- 
goings, such  as  salaries  or  allowances  of  the  Mayor,  Re- 
corder, Town  Clerk,  Stipendiary  Magistrate,  and  other  offi- 
cials, can  be  made,  except  upon  an  order  of  the  council, 
signed  by  three  members,  or  of  a  Court  of  Quarter  or  Petty 
Sessions. 

Special  Types  of  Borough 

So  much  for  the  general  features  common  to  all  boroughs, 
of  which  there  are  some  three  hundred  and  twenty  in  England 
and  Wales.  We  have  now  to  notice  the  peculiarities  of  cer- 
tain groups  within  this  large  number,  which  are  apt  greatly 
to  puzzle  observers ;  the  more  especially  as  these  groups  are 
not  distinct,  but  cut  into  one  another,  i.e.  some  boroughs 
have  more  than  one  of  the  peculiarities  referred  to. 

Police  Boroughs 

As  has  been  hinted  recently,  some  boroughs  have  their  own 
separate  police  forces,  maintained  and  controlled  independ- 
ently of  the  county  police  force,  partly  out  of  the  borough 
rate,  partly  by  Treasury  grants  (p.  324).    No  borough  with 


342  LOCAL    GOVERNMENT 

less  than  10,000  inhabitants  can  have  a  separate  police  force 
of  ordinary  paid  constables ;  and  not  every  borough  with 
more  than  10,000  inhabitants  has  one.^  Where  a  borough 
has  such  a  force,  however,  it  must  appoint  a  Watch  Committee 
of  not  more  than  one  third  of  its  own  members,  exclusive  of 
the  Mayor ;  and  this  committee  appoints  the  Chief  and  other 
constables,  issues  regulations  (which  must  be  approved  by 
the  Home  Office)  for  their  conduct,  and,  generally,  manages 
the  force.  Every  constable,  county  or  borough,  must,  how- 
ever, obey  the  lawful  orders  of  any  Justice  of  the  Peace 
(borough  or  county)  within  the  limits  of  his  (the  con- 
stable's) authority,  which  are  the  borough  and  a  radius  of 
seven  miles  therefrom,  and  the  county  of  which  the  borough 
forms  part.  A  police  borough  may,  by  ancient  custom,  have 
power  to  levy  a  special  "  watch  rate  "  on  certain  specified 
buildings;  but  such  rate  may  not  exceed  eight  pence  in  the 
pound  of  the  net  annual  value  of  the  rated  premises  to  a 
tenant  on  a  repairing  lease.  Usually,  however,  the  police  of 
a  borough  are  maintained  out  of  the  ordinary  borough  in- 
come, supplemented,  as  has  been  said,  by  Treasury  grants. 

Borough  Magistrates 

Further,  a  borough  may  have  a  separate  Commission  of 
the  Peace,  i.e.  Justices  of  the  Peace  appointed  by  the  King 
to  act  in  and  for  the  borough ;  about  one  hundred  and  twenty 
boroughs  have  such  separate  commissions.  But  the  mere 
fact  of  having  such  a  commission  does  not  exclude  the  juris- 
diction of  the  county  Justices,  or  exempt  the  borough  from 
contribution  to  county  rates ;  unless  it  is  accompanied  by  the 
grant  of  a  separate  Court  of  Quarter  Sessions  (p.  254),  the 
issue  of  which  may  be  opposed  by  the  county  authorities. 
For  the  grant  of  a  separate  Court  of  Quarter  Sessions  will, 
practically,  exempt  the  borough  from  the  judicial  authorities 
of  the  county,  and,  consequently,  from  contribution  to  their 
expenses,  and  will  free  the  burgesses  from  service  on  county 

*  There  is  even  one  case  (Gloucester)  in  which  a  "county  borough"  (p.  344) 
has  no  separate  police  force. 


SPECIAI.    TYPES    OF    BOROUGHS  343 

Quarter  Sessions  juries;  though  it  will  not,  if  made  since 
1888,  and,  even  if  made  before,  not  if  the  borough  has  less 
than  10,000  inhabitants,  confer  on  the  borough  council  or 
Justices  the  former  administrative  powers  of  Quarter  Ses- 
sions (p.  328),  which  have  now  passed  to  the  county  coun- 
cils. And  the  council  of  a  borough  having  a  separate 
Quarter  Sessions  must  pay  the  salaries  of  a  Recorder,  who 
acts  as  judge  in  criminal  matters  and  rating  appeals,  and  is 
appointed  by  the  Cro^vn  (p.  254),  and  a  Clerk  of  the  Peace 
(p.  329)  and  a  Coroner  (p.  327)  appointed  by  itself;  unless, 
in  the  latter  case,  its  population  is  less  than  10,000. 

Stipendiary  Magistrates 

A  Stipendiary  Magistrate  (p.  249)  is  not  strictly  a  bor- 
ough official ;  though  he  may  be  appointed  by  the  Crown,  on 
the  petition  of  any  borough,  to  act  for  a  district  of  which 
the  borough  forms  part.  In  such  a  case,  the  borough  pays 
his  salary ;  and  he  takes  precedence  of  all  the  other  Justices 
of  the  borough,  having  generally,  as  has  been  said  (p.  249), 
the  judicial,  but  not  the  administrative  powers,  of  a  Court 
of  Petty  Sessions.  There  are  eighteen  provincial  stipendiary 
magistrates,  mostly  for  boroughs ;  as  well  as  twenty-four 
metropolitan,  appointed  under  different  rules  (p.  212). 

Borough  Civil  Courts 

A  borough  may,  in  addition  to  its  magisterial  courts,  have 
a  court  of  civil  jurisdiction,  or  "borough  court,"  for  the 
trial  of  cases  arising  within  the  borough.  Since  the  estab- 
lishment of  the  County  Court  system  (pp.  260,  261),  these 
courts  have  not  been  favoured  by  authority ;  and  no  new  ones 
are  created,  while  those  which  survive  from  ancient  times  are 
mostly  regulated  by  modern  Acts  of  Parliament. 

Counties  of  Cities  and  Towns 

A  few  ancient  boroughs  are  "  counties  of  cities "  or 
"  counties  of  towns."  This  is  a  picturesque  survival,  almost 
the  only  visible  result  of  which  is  the  annual  appointment  of 


344  LOCAL    GOVERNMENT 

a  sheriff  (p.  326)  by  the  borough  council,  to  act  within  the 
borough.  Formerly  this  class  of  boroughs  had  most  of  the 
distinctive  features  of  the  ancient  county  system,  including 
special  Parliamentary  franchises  and  separate  Assizes.  But 
the  latter  have  long  ago  disappeared;  while  the  former  may 
be  abolished  by  the  new  Reform  Act  (p.  130).  It  may  be 
mentioned,  in  passing,  that  there  is  no  legal  difference  in 
England  or  Wales  between  a  "  city  "  and  an  ordinary  bor- 
ough, or  between  a  "  Lord  Mayor  "  and  a  simple  mayor. 
The  title  of  "  city  "  is  ancient  tradition ;  that  of  "  Lord 
Mayor  "  is  conferred  by  message  from  the  Crown. 

"  County  Boroughs  " 

Very  important,  however,  is  the  class  of  "  county  bor- 
oughs "  created  by  the  Local  Government  Act  of  1888;  be- 
cause, in  addition  to  their  powers  and  duties  as  municipal 
boroughs  and  sanitary  districts,  they  have,  with  slight  ex- 
ceptions, the  administrative  powers  and  duties  of  county  coun- 
cils, and  are,  to  all  intents  and  purposes,  outside  their  coun- 
ties for  administrative  and  financial  purposes,  though,  if  they 
are  not  Assize  towns,  they  will  have  to  contribute  to  the  cost 
of  the  county  Assizes,  and,  if  they  have  no  Quarter  Sessions 
of  their  own  (p.  342),  to  the  cost  of  the  county  Quarter 
Sessions.  But  the  gift  of  these  powers  and  duties  does  not 
cause  any  change  in  the  government  of  the  borough,  nor  does 
it  make  it  a  county  of  itself  (p.  344)  ;  though,  for  obvious 
convenience,  in  selecting  their  first  list  of  county  boroughs, 
the  framers  of  the  Local  Government  Act  did  not  overlook 
the  claims  of  counties  of  cities  and  towns.  The  chief  test, 
however,  is  population ;  and  50,000  is  the  minimum  limit. 
But  there  is  quite  a  large  number  of  boroughs  with  greater 
population  which  are  not  county  boroughs. 

Finally,  before  leaving  the  subject  of  local  government  in 
England,  it  must  be  remembered  that,  being  English,  it  is 
subject  to  anomalies  and  exceptions,  which  do  not  fit  in  with 
the  scheme  sketched  in  this  and  the  preceding  chapter.     Still, 


CITY    AND    COUNTY    OF    LONDON  345 

if  we  make  one  important  reservation,  the  divergences  from 
plan  are  less  serious  in  this  than  in  most  English  institutions. 
The  great  exception,  however,  of  the  City  and  County  of 
London  is  so  anomalous,  as  to  necessitate  a  word  of  mention ; 
even  if,  being  an  unlikely  model  for  imitation,  we  do  not  give 
it  the  attention  it  deserves. 

London 

There  are  really  many  "  Londons  " ;  but  the  only  two 
which  are  concerned  with  local  self-government  are,  as  has 
been  suggested,  the  City  of  London  and  the  County  of  Lon- 
don. It  is  difficult  to  say  whether  the  former  is,  legally, 
within  the  latter;  because  for  most  purposes  it  is  wholly 
independent  of  it,  and  ranks  as  a  county  of  itself.  It  does  not 
contribute  to  the  ordinary  county  rate  (p.  333)  ;  though  it 
does  contribute  to  the  education  rate,  and  send  members  to 
the  London  County  Council. 

"The  City" 

The  City  comprises  only  a  limited  area  of  about  one  square 
mile  on  the  north  bank  of  the  Thames,  in  the  heart  of  the 
metropolitan  area.  Its  boundaries  and  its  government  are 
alike  ancient.  It  is  governed  by  Lord  Mayor,  Aldermen,  and 
Common  Council;  the  last  being  annually  elected,  not  by 
the  rate-payers,  but  by  the  livery-men  of  the  ancient  gilds  or 
"  City  Companies,"  who  are,  in  theory,  the  free  craftsmen 
of  the  city.  As  a  matter  of  fact,  they  are  persons  co-opted 
by  their  fellow  gilds-men,  who  thus  have  the  control  of 
the  City  government  in  their  hands.  The  aldermen  form  a 
separate  chamber  of  the  City  government,  being  elected  for 
life  by  the  wards  into  which  the  City  is  divided ;  and  the 
Lord  Mayor,  though  nominally  elected  by  the  Council,  is, 
almost  invariably,  the  senior  alderman  who  has  not  "  passed 
the  Chair."  Lord  Mayor  and  Aldermen  are  alike  Justices  of 
the  Peace  for  the  City,  and  sit  regularly  at  the  Mansion 
House  and  the  Guildhall  as  such.  In  addition  to  the  ordinary 
borough  officials  —  the  Town  Clerk  and  Treasurer  (who  is 


346  LOCAL    GOVERNMENT 

here  called  the  "  Chamberlain  "),  the  Clerk  of  the  Peace,  the 
Medical  Officer  of  Health,  the  Surveyor,  and  the  Engineer  — 
the  City  has  many  other  important  officials,  such  as  the 
Recorder  and  the  Common  Serjeant,  both  appointed  by  the 
Crown,  who  exercise  criminal  jurisdiction  in  the  Central 
Criminal  Court  at  the  "  Old  Bailey  "  (p.  256),  the  Assistant 
Judge  of  the  Mayor's  Court  (p,  265),  the  Comptroller,  the 
Remembrancer,  the  City  Solicitor,  and  the  "  Secondary  " ;  its 
chief  police  officer  is  called  a  "  Commissioner  " ;  it  has,  as  a 
"county  of  a  city"  (p.  343),  two  sheriffs,  elected  by  the 
livery-men  from  among  the  aldermen  who  have  not  already 
served  as  such;  and  it  appoints  several  important  education 
officials  for  the  various  educational  institutions  (not  ele- 
mentary) maintained  by  the  City.  The  City's  annual  income 
from  its  permanent  property  alone,  independently  of  rates, 
approaches  £250,000. 

The  County  of  London 

The  London  County  Council  governs  an  area  of  ap- 
proximately 121  square  miles,  or,  roughly,  an  area  having 
a  radius  of  about  six  miles  from  Charing  Cross,  on  both 
sides  of  the  Thames,  cut  out  of  the  counties  of  Middlesex, 
Surrey,  and  Kent.  It  is,  of  course,  an  arbitrary,  not  an 
historic  area,  chosen  as  the  result  of  the  practical  needs  of 
the  huge  and  dense  population  settled  round  the  City  centre. 
Its  council,  created  by  the  Local  Government  Act  of  1888, 
consists  of  a  Chairman,  one  hundred  and  eighteen  council- 
lors, and  nineteen  ordinary  aldermen,  elected  every  three 
years,  in  the  same  manner  as  an  ordinary  county  council 
(p.  329)  ;  and  it  has  the  powers  within  its  area  of  an  ordi- 
nary county  council,  with  the  striking  exception  of  the 
maintenance  and  control  of  the  police,  for  it  is  within  the 
orbit  of  the  Metropolitan  Police,  which  is,  as  previously 
explained  (p.  9),  the  one  police  force  of  the  country  which 
is  under  the  direct  control  of  the  central  government,  though 
it  is  largely  maintained  out  of  local  rates.  In  addition, 
the  London  County  Council  has  special  powers  in  the  mat- 


THE    LONDON    COUNTY    COUNCIL  347 

ter  of  main  sewers,  which  are  not  exercised  by  ordinary 
county  councils ;  and  it  is  the  sole  authority  for  public 
elementary  and  other  education  within  its  area.  This  au- 
thority it  exercises  through  its  Education  Committee 
(p.  241),  which  is,  virtually,  the  old  London  School  Board 
without  a  special  election.  Two  of  its  best  known  and 
most  important  activities  are  the  re-arrangement  of  the 
medieval  streets  of  London  to  suit  the  needs  and  tastes  of 
modern  times,  and  the  provision  and  maintenance  of  the 
London  tramways.  The  magnitude  of  its  operations  may 
be  guessed  from  the  fact  that,  in  normal  years,  its  ex- 
penditure amounts  to  upwards  of  £12,000,000. 

The  Metropolitan  Boroughs 

Within  the  area  of  the  London  County  Council,  and  in 
some  sense  under  its  jurisdiction,  are  the  twenty-eight 
Metropolitan  Boroughs,  which  correspond  to  the  urban 
sanitary  districts  of  ordinary  counties.  Some  of  them,  such 
as  Westminster,  Kensington,  and  Southwark,  are  old  munic- 
ipal boroughs  with  long  histories;  the  majority  are  ancient 
parishes,  which,  owing  to  an  enormous  increase  in  popula- 
tion in  the  late  eighteenth  and  nineteenth  centuries,  acquired 
a  special  form  of  government,  known  as  a  "  select  vestry," 
either  by  custom  or  under  the  provisions  of  an  Act  of  Parlia- 
ment of  the  year  1831,  known  as  "  Hobhouse's  Act." 

"  Select  Vestries  " 

The  powers  of  these  "  select  vestries  "  were  not,  however, 
always  exercised  with  vigour  or  discretion ;  and  much  of  the 
government  of  London  outside  the  City  was  transferred  to 
another  representative  body,  the  Metropolitan  Board  of 
Works,  created  in  1855.  This  step  naturally  tended  to  the 
further  disparagement  of  vestry  government ;  and,  when  the 
powers  and  duties  of  the  Metropolitan  Board  of  Works 
were  themselves  transferred  to  the  London  County  Council 
in  1888,  it  was  widely  assumed  that  the  parochial  govern- 
ment of  the  "inner  suburbs"  (for,  by  that  time,  "London 


348  LOCAL    GOVERNMENT 

beyond  the  border  "  had  become  a  very  obvious  fact)  would 
disappear.  But  politics  ruled  otherwise;  and,  in  the  year 
1899,  the  vestries  of  London  were  raised  to  the  dignity  of 
borough  councils,  with  mayor,  aldermen,  and  councillors, 
though  rather  on  the  model  of  county  than  of  ordinary 
borough  government.  Thus,  for  example,  the  councillors 
retire  all  together  every  three  years,  instead  of  by  thirds 
(p.  337)  ;  and  the  disqualification  of  Holy  Orders  does  not 
apply  to  the  metropolitan  borough  councils. 

Their  Duties 

The  metropolitan  boroughs  are  sanitary  districts,  with 
most  of  the  powers  of  ordinary  urban  councils  (pp.  309— 
323)  ;  though  their  duties  in  this  respect  are  shared  in  a 
rather  special  way  by  the  London  County  Council.  They 
had  also  "  distress  committees  "  under  the  Unemployed  Work- 
men Act  of  1905  (p.  322)  ;  while  the  County  Council  sent 
members  to  the  "  central  body "  for  London  established 
under  that  Act.  The  metropolitan  borough  councils  also 
assess  and  levy  rates,  much  as  ordinary  urban  councils 
(p.  323).  But  they  are  not  education  authorities  under  the 
Education  Act  of  1902;  for,  by  the  London  Education  Act 
of  1903,  the  duties  of  the  old  London  School  Board  were,  as 
has  been  said  (p.  347)  transferred  to  the  London  County 
Council. 

London  Poor  Relief:  The  Metropolitan  Asylums 

Board 

The  heavy  duties' connected  with  the  relief  of  the  poor  in 
the  metropolitan  area  are  confided  to  Guardians  elected  by 
the  rate-payers  of  the  various  metropolitan  Unions  in  the 
same  way,  and  having  the  same  powers,  as  other  Guardians 
(pp.  312-314)  ;  with  the  exception  that,  instead  of  main- 
taining their  own  or  county  asylums,  they  send  representa- 
tives to  a  central  Metropolitan  Asylums  Board,  which  con- 
tains also  nominees  of  the  Local  Government  Board,  and 
which   undertakes,   besides    the    provision    and    maintenance 


SCOTTISH    COUNTY    COUNCILS  349 

of  asylums,  the  provision  of  some  hospitals  for  special  classes 
of  diseases. 

The  Metropolitan  Water  Board 

The  metropolitan  borough  councils  send  representatives 
also,  as  do  the  Common  Council,  the  London  County  Coun- 
cil, and  the  councils  of  certain  areas  adjacent  to  London, 
to  the  Metropolitan  Water  Board,  an  independent  body 
created  in  1902  to  take  over  the  water  supply  of  "  Outer 
London  "  from  the  various  private  companies  then  engaged 
in  providing  it.  This  body  assesses  and  collects,  within 
statutory  limits,  its  own  rates, 

Scotland:  County  Councils 

In  spite  of  the  great  differences  which  at  one  time  existed 
between  England  and  the  other  countries  of  the  United 
Kingdom,  the  schemes  of  local  government  in  Scotland  and 
Ireland  have  recently  shown  a  marked  tendency  to  approxi- 
mate to  the  English.  In  the  former  country,  county  coun- 
cils, thirty-three  in  number,  much  on  the  lines  which  have 
been  described  (p.  329),^  were  introduced  to  take  over  the 
powers  of  the  older  Commissioners  of  Supply  or  county 
committees  of  landowners,  and  the  various  bodies  of  Road 
Trustees.  In  the  matter  of  police,  which  has  been  a  regular 
county  force  since  1857,  the  Commissioners  of  Supply  are 
still  associated  with  the  county  councils  in  joint  committees, 
which  have  also  important  powers  in  the  matter  of  finance ; 
while,  as  has  been  remarked  (p.  274),  the  granting  and 
renewal  of  liquor  licences  is  still  in  the  hands  of  the  Justices 
of  the  Peace.  But  the  Scottish  county  councils  have  large 
powers  in  the  matters  of  contagious  diseases  of  animals, 
public  health,  weights  and  measures,  and  lunatic  asylums. 

'  An  interesting  variation  is,  that  the  representatives  of  the  smaller  burghs 
which  are  included  in  the  county  administration  are  not  elected  directly  to  the 
county  council,  but  by  and  from  the  burgh  councils. 


350  LOCAL    GOVERNMENT 

School  Boards 

The  only  unit  of  local  government  between  the  county 
and  the  parish  in  Scotland  appears  to  be  the  school  district, 
formed  under  the  provisions  of  the  Scottish  Education  Act 
of  1872;  and  this  is  hardly  an  exception,  for,  under  that 
Act,  the  school  district  is  either  a  parish  or  a  borough.  But 
the  district  is  still  a  distinct  part  of  the  scheme  of  local 
government  in  Scotland;  for  each  school  district  elects  its 
own  school  board  for  educational  purposes,  as  a  distinct 
body  from  the  burgh  or  parish  council,  and  the  electors  are 
not  necessarily  the  same  in  both  cases. 

Parish  Councils 

By  the  provisions  of  a  recent  statute,  the  Parish  Councils 
Act  of  1894,  parish  councils  are  also  instituted  in  all  Scot- 
tish parishes,  "  landward  "  (rural)  and  "burghal  "  (urban), 
to  take  over  the  duties  of  the  old  parochial  boards,  which 
were  formed  in  the  middle  of  the  nineteenth  century  to  re- 
place, in  the  matter  of  poor-relief,  the  somewhat  limited 
activities  of  the  kirk  sessions  (p.  300).  The  subject  of 
poor-relief  is,  however,  much  less  onerous  in  Scotland  than 
in  England,  owing  to  the  fact  that  it  is,  so  far  as  the  State 
is  concerned,  confined  to  the  impotent  poor,  and  takes 
largely  the  form  of  "  out-door  relief  "  (pp.  313,  314).  The 
difference  in  the  policies  adopted  by  the  two  countries  in 
this  important  matter  at  the  Reformation  is  striking,  and 
has  persisted  ever  since. 

Burghs 

In  theory  there  are  four,  in  substance  two,  classes  of 
urban  municipalities  in  Scotland,  viz.  (1)  royal  and  parlia- 
mentary burghs  and  (2)  police  burghs.  The  former  are 
governed  by  elected  provosts  and  "  bailies,"  or  councillors, 
having  extensive  powers,  much  as  English  boroughs ;  but  the 
municipal  franchise  in  Scotland,  though  it  will  probably  be 
greatly  extended  by  the  provisions  of  the  pending  Repre- 


LOCAL    GOVERNMENT    IN    IRELAND        351 

sontation  of  the  People  Bill  (p.  337  n.),  appears  at  present 
to  be  much  more  restricted  than  the  English,  and  not  to  in- 
clude all  the  burgesses  of  the  burgh.  Many  of  the  royal  and 
parliamentary  burghs  have  separate  Commissions  of  the 
Peace  (p.  342).  The  police  burghs,  as  their  name  implies, 
have  more  restricted  powers,  being  governed  by  elected  Com- 
missioners, chiefly  concerned  with  police  matters.  These 
powers  are  elaborately  defined  by  a  great  Act  of  Parliament 
of  the  year  1892;  and,  in  fact,  they  include  a  considerable 
number  of  matters  of  public  health  and  convenience,  such 
as  lighting,  paving,  and  sanitation.  Formerly  the  royal  and 
parliamentary  boroughs  alone  sent  delegates  to  the  annual 
Convention  of  Royal  Burghs ;  but  now  all  burghs  have  that 
privilege. 

Ireland 

In  Ireland  there  are  no  parish  councils ;  and  the  modern 
English  system  of  county  government  was  not  introduced 
there  until  1898.  In  that  year,  however,  elective  county 
councils  were  established,  to  take  over  the  administrative 
duties  of  the  old  Grand  Juries,  including  the  important  sub- 
ject of  the  county  "  cess,"  or  rate.  But  the  counties  are 
subdivided  into  urban  and  rural  health  districts,  which  share 
with  the  county  councils  the  administration  of  the  laws 
affecting  public  health.  An  interesting  section  of  the  Irish 
County  Councils  Act  contemplates  the  ultimate  decision 
of  disputes  arising  out  of  the  exercise  of  a  county  council's 
road-making  or  road-widening  powers,  by  a  Judicial  Com- 
mittee of  the  Irish  Privy  Council.  The  subject  of  poor  relief 
is  handled  in  Ireland,  much  as  in  England,  by  Boards  of 
Guardians,  consisting,  in  rural  districts,  of  the  district  coun- 
cillors, and,  in  urban  districts,  of  specially  elected  Guardians. 
There  are  a  few  borough  corporations  in  the  older  and  more 
important  towns,  and  a  larger  number  of  unincorporated 
towns  under  Town  Improvement  Commissioners. 


352  LOCAL    GOVERNMENT 

Colonial  and  Indian  Local  Government 

The  subject  of  local  government  in  the  colonies  and  Brit- 
ish India,  sufficiently  vast  and  complicated  in  itself,  is 
rendered  additionally  difficult  of  treatment  by  the  facts,  that 
information  with  regard  to  it  is  not  easily  accessible  in  Eng- 
land, and  that  many  of  its  most  familiar  terms  have, 
obviously,  meanings  in  the  countries  of  their  adoption  dif- 
ferent from  those  attributed  to  them  in  England.  Con- 
sequently, only  a  few  general  indications  of  its  character  can 
be  attempted. 

The  Self-governing  Dominions 

It  appears  to  be  generally  true,  that  no  systematic  effort 
to  constitute,  or  re-constitute  the  parochial  system  has  yet 
been  made,  at  any  rate  in  the  self-governing  Dominions. 
This  is  hardly  a  matter  for  surprise ;  for  the  new  territories 
of  the  self-governing  Dominions  were,  for  the  most  part, 
peopled  long  after  the  ancient  parochial  system  of  the 
United  Kingdom  had  fallen  into  decay,  and  the  thinly  scat- 
tered colonists,  bred  in  an  individualist  system,  felt  no  desire 
to  revive  the  rural  community  of  the  Middle  Ages.  It  is 
remarkable,  however,  that,  in  the  French-speaking  portions 
of  the  Empire,  e.g.  the  Channel  Islands  and  the  Province  of 
Quebec,  and,  apparently,  in  Ontario,  the  parish,  or  com- 
mune, has  survived  tenaciously,  and  shows  no  signs  of  ex- 
tinction. Whether  this  fact  is  due  to  the  intense  feudalism 
of  Old  France,  or  is  an  evidence  of  strong  popular  resistance 
to  that  feudalism,  is  a  problem  too  difficult  to  be  handled 
here.  It  is  part  of  the  larger  and  still  unsettled  question: 
whether  feudal  influences  created,  or,  on  the  other  hand, 
tended  to  destroy,  the  ancient  village  community. 

Sanitary  Districts 

Similarly,  it  may  be  said,  that  the  rather  artificial  midway 
unit  between  the  parish  and  the  county,  known  in  England  as 
the  "  district,"  or  "  sanitary  district,"  shows  little  tendency 


DOMINION    LOCAL    GOVERNMENT  353 

at  present  to  reproduce  itself  in  the  Dominions.  The  near- 
est approaches  to  it  are,  perhaps,  the  "  ridings  "  into  which 
the  shires  of  New  South  Wales,  and  the  "  town  "  and  "  road  " 
districts  into  which  the  counties  of  New  Zealand,  are,  or  may 
be,  divided ;  but  the  parallel  is  not  close,  for  the  sanitary  dis- 
tricts of  England  are  not,  in  origin,  subdivisions  of  counties. 
They  are,  rather,  units  based  on  the  presumed  requirements 
of  public  health  administration  in  a  densely  populated  coun- 
try ;  and,  apart  from  the  great  towns,  population  in  the  self- 
governing  Dominions  is,  as  yet,  hardly  dense  enough  to  need 
them. 

Counties 

On  the  other  hand,  the  institution  known  as  the  county, 
shire,  or  even  "  district  "  (in  the  larger  sense), ^  i.e.  the  self- 
governing  area  of  large  size,  running  into  hundreds  of  square 
miles,  is  a  familiar  object  in  Dominion  local  government.  In 
almost  all  cases,  it  began  life  as  a  "  road  district,"  and,  in 
the  case  of  Western  Australia,  it  retains  that  title;  though, 
in  this  particular  case,  we  can  see  the  older  unit  on  its  way 
to  the  fuller  developement  of  a  "  county  "  or  "  shire,"  in  the 
fact  that,  in  some  of  the  more  thickly  populated  "  road  dis- 
tricts," there  are,  in  addition  to  the  district  councils,  local 
boards  for  sanitation  and  other  health  purposes.  The 
"  divisional  councils  "  of  Cape  Colony,  the  "  rural  munici- 
palities "  of  the  prairie  provinces  of  Canada  (Manitoba, 
Saskatchewan,  and  Alberta),  and  the  "  municipal  districts  " 
of  Tasmania,  are,  apparently,  in  a  similar  transition  stage. 
We  may  say,  perhaps,  without  much  fear  of  hasty  generaliza- 
tion, that  this  large  unit  is,  in  the  self-governing  Dominions, 
the  product  of  a  desire  to  improve  the  means  of  locomotion 
and  public  health.  But  we  must  note,  that  its  powers  are 
considerably  less  than  those  of  the  county  in  England;  be- 
cause the  systems  of  police,  public  elementary  education, 
water-supply,  liquor  licenses,  and  other  important  matters, 

*  Thus,  the  "districts"  of  British  Columbia  and  South  Australia  are,  obvi- 
ously, what  would  in  England  be  called  counties. 


354  LOCAL    GOVERNMENT 

are  more  completely  in  the  hands  of  the  central  governments 
in  the  self-governing  Dominions  than  is  the  case  in  England. 

County  Councils 

Naturally,  in  countries  like  the  self-governing  Dominions, 
the  principle  of  elected  representative  councils  is  almost 
universal  in  the  shires  and  counties.  Here,  again,  we  notice 
a  striking  exception  in  the  cases  of  Quebec  and  Ontario, 
where  the  county  council  consists  of  the  "  mayors  "  or 
"  reeves  "  of  the  parishes,  or  village  communes,  who  are,  how- 
ever, themselves  elected  by  the  inhabitants  of  the  parish.  In 
other  cases,  the  county  councils  are  directly  elected,  usually 
on  a  rate-paying  franchise,  for  different  "  wards  "  or  "  par- 
ishes "  which  are  merely  electoral  areas.  Each  council,  as 
a  rule,  elects  an  annual  "  chairman,"  "  warden,"  or  (in 
Quebec)  "  prefect  " ;  but  in  Saskatchewan  there  is  a  popu- 
larly elected  "  reeve  "  as  chairman  of  the  council.  Nearly 
all,  if  not  all,  of  these  county  councils  have  power  to  make 
by-laws,  subject  to  the  approval  of  a  central  authority;  but, 
in  Saskatchewan  and  Alberta,  any  by-law  involving  the  ex- 
penditure of  funds  must  be  referred  to  the  electors  for 
confirmation. 

Urban  Municipalities 

It  is  again  one  of  the  characteristics  of  the  self-governing 
Dominions,  that  urban  self-government,  the  highest  and 
latest  type  in  England,  should  have  developed  there  more 
rapidly  than  rural  self-government.  For  good  or  for  ill,  the 
self-governing  Dominions  are  remarkable  for  the  number 
of  their  great  cities  and  towns.  Thus,  in  Canada,  there  are 
fourteen  at  least  with  over  20,000  inhabitants  each:  and 
three  sevenths  of  the  entire  population  are  classed  as 
"  urban."  In  Australia,  the  two  great  cities  of  Sydney  and 
Melbourne  have  each  upwards  of  half  a  million  inhabitants; 
the  former  containing  three  eighths,  and  the  latter  more  than 
one  half,  of  the  entire  population  of  its  State.  In  South 
Africa,  there  were,  in  1911,  twelve  cities  with  over  12,000 


DOMINION    LOCAL    GOVERNMENT  355 

inhabitants  each ;  and  the  City  of  Johannesburg  holds  nearly 
one-seventh  of  the  entire  population  (European  and  native) 
of  the  Transvaal.  It  is  not  surprising,  therefore,  to  find 
that  "incorporation"  (p.  335),  which  is  one  of  the  most 
decided  marks  of  advanced  self-government,  has  made  great 
strides  in  the  self-governing  Dominions.  In  the  province  of 
Nova  Scotia  alone,  though  it  has  but  half  a  million  inhabit- 
ants, there  are  thirty-eight  incorporated  towns ;  while  there 
are  one  hundred  and  eighty-six  in  New  South  Wales,  and  in 
Manitoba  every  city,  town,  village,  and  rural  municipality  is 
incorporated. 

Uniform  Councils 

The  type  of  government  in  the  urban  municipalities  as  a 
rule  follows  pretty  closely  the  English  reformed  model  pre- 
viously described  (pp.  336-339)  ;  but,  apparently,  there  is  in 
the  Dominion  municipal  councils  no  process  of  double  elec- 
tion such  as  that  which  produces  the  English  "  aldermen."  ^ 
On  the  other  hand,  the  process  of  retiring  the  councillors 
by  rotation,  so  as  to  avoid  a  completely  "  general  "  election, 
is,  apparently,  gaining  ground;  notably  in  South  Africa, 
where  it  prevails  in  all  the  four  provinces  of  the  Cape  Colony, 
the  Transvaal,  the  Orange  Free  State,  and  Natal.  It  is  to 
be  noticed,  however,  that,  in  the  two  latter  cases,  the  full 
term  of  office  is  only  two  years ;  the  councillors  retiring  by 
halves.  To  the  self-governing  Dominions  also  belongs  the 
merit  of  giving  a  legal  significance  to  the  distinction  between 
"  cities  "  and  ordinary  corporate  towns,  which,  in  England, 
is  merely  ceremonial.  In  Victoria,  the  distinction  is  based 
on  revenue;  in  Ontario  and  Saskatchewan,  on  population. 
But  in  all  these  cases  it  involves  a  difference  of  powers. 

The  Cumulative  Vote 

One  feature  of  peculiar  interest  in  connection  with  the 
urban  organization  of  South  Africa,  is,  that  it  recognizes 

*  The  "aldermen"  of  Ontario  and  New  South  Wales  are,  apparently,  equiva- 
lent to  the  ordinary  councillors  in  England. 


356  LOCAL    GOVERNMENT 

the  cumulative  vote  {i.e.  the  right  of  a  single  voter  to  give 
more  than  one  vote  for  a  candidate),  based  on  the  ownership 
of  land.  In  the  Cape  Colony  this  apparently  reactionary 
rule  prevails.  On  the  other  hand,  the  Orange  Free  State 
allows  the  municipal  franchise  to  all  resident  householders. 
Another  point  of  considerable  interest  is  the  fact,  that  the 
American  system  of  having  paid  Commissioners,  or  experts, 
for  urban  administration,  has  gained  a  footing  in  Saskatche- 
wan and  Alberta ;  while  the  "  cities  "  of  Ontario  may  have 
special  Boards  of  Control  for  finance. 

India  and  Egypt 

In  the  countries  which,  before  passing  under  British  con- 
trol, had  old-established  civilizations  of  their  own,  the  prob- 
lem of  local  self-government  has,  naturally,  worn  a  different 
aspect.  There  the  problem  has  not  been  to  build  up  a  local 
system  out  of  the  wilderness,  but  to  adapt  to  modern  uses 
the  ancient  institutions  of  the  country.  In  a  way,  this 
problem  may  be  said  to  resemble  the  English  problem;  for, 
even  in  England,  effective  local  government  is  very  modern, 
though  it  is  based  on  ancient  institutions  which  had  almost 
become  extinct.  Perhaps  that  is  one  reason  why  British 
statesmen  have,  on  the  whole,  been  so  successful  in  adapting 
ancient  institutions  in  other  countries. 

Indian  Village  Institutions 

Thus,  for  example,  recent  researches  into  the  history  of 
administration  in  British  India  ^  reveal  clearly  two  things. 
The  first  is,  that  there  survived,  down  to  the  establishment 
of  British  rule,  though  almost  obliterated  by  the  countless 
waves  of  conquest  which  had  passed  over  India,  a  vast  net- 
work of  local  and  self-governing  institutions,  of  almost  im- 
memorial antiquity.  Most  of  these  were  connected  with  the 
village,  or  agricultural  community,  which,  though  its  charac- 

*  These  researches  have  been  conveniently  summarized  in  a  recently  pub- 
lished work  entitled,  "Village  Government  in  British  India,"  by  John  Matthai 
(Unwin,  1915). 


LOCAL  GOVERNMENT  IN  INDIA  AND  EGYPT     357 

ter  varies  from  province  to  province,  and  even  from  district 
to  district,  still  shows  a  general  similarity  which  seems  to 
mark  it  as  an  almost  necessary  stage  in  the  evolution  of  pro- 
gressive communities.^  The  village  institutions  of  native 
India  comprise  not  only  a  great  number  of  village  officials, 
rendering  sanitary,  police,  educational,  and  even  judicial 
services,  but  even,  widely  spread  throughout  the  country, 
a  rudimentary  village  council  of  elders  (^panchaifat),  chosen 
by  the  oldest  known  form  of  election,  viz.  the  casting  of  lots, 
to  discuss  the  affairs  of  the  village. 

Fostered  by  British  Admijjistrators 

In  the  face  of  this  evidence,  it  is  almost  impossible  to 
doubt  the  existence,  in  some  form,  of  similar  institutions  in 
early  England;  for  the  later  stages  of  English  developement 
are  also  manifest  in  India.  But  it  is  more  to  our  immedi- 
ate purpose  to  note  the  existence  of  a  second  fact  which 
appears  from  the  recently  collected  evidence,  viz.  the  anxiety 
shown  by  the  British  rulers  of  India,  for  upwards  of  a  cen- 
tury, to  foster  and  revive  these  ancient  self-governing  insti- 
tutions. These  attempts,  usually  made  by  Provincial  Regu- 
lations (p.  83),  have  not  always  been  successful;  and  it  is 
clear  that  official  views  on  the  policy  which  they  illustrate 
have  not  been  unanimous.  But  it  is  also  clear  that,  long 
before  Sir  Henry  Maine,  by  his  brilliant  essays,  had  called 
attention  to  village  survivals  in  India,  more  than  one  Indian 
administrator  had  made  an  earnest  attempt  to  incorporate 
native  institutions  into  the  fabric  of  government.  But  the 
proverbial  difficulty  of  putting  new  wine  into  old  bottles 
nowhere  more  completely  manifests  itself  than  in  such  a 
task.  Take,  for  example,  the  village  watchman.  So  long 
as  he  remains  a  purely  native  institution,  appointed  (or,  at 
least,  accepted)  by  the  community  as  part  of  itself,  and  paid 
by  a  share  of  the  village  produce,  he  is  a  powerful  agency  in 

*  Nothing  is  more  interesting  in  this  connection  than  a  comparative  study 
of  such  primitive  police  regulations  as  those  contained  in  the  English  Statute  of 
Winchester  of  1285,  with  the  description  given  by  Mountstuart  Elphinstoue  of 
the  duties  of  the  village  watch  in  the  Maratha  country. 


358  LOCAL    GOVERNMENT 

maintaining  order.  The  moment  he  becomes  a  Government 
official,  his  position  changes,  not  always  for  the  better. 
Doors  whieh  before  were  open  to  him,  are  now  closed;  he 
is  hedged  around  by  formalities ;  he  may  degenerate  into  a 
spy,  or,  quite  unjustly,  acquire  the  reputation  of  being  one. 

Lord  Ripon's  Reforms 

Obviously,  therefore,  the  systematic  reforms  introduced 
for  British  India  generally  by  Lord  Ripon's  Government  in 
1882,  were  an  experiment  of  the  most  delicate  character. 
They  did  not  profess  to  deal  with  the  smaller  units,  but  con- 
fined themselves  mainly  to  establishing  self-governing  insti- 
tutions in  the  larger  areas,  which,  owing  to  the  variety  of 
races  in  India,  were  less  well-provided  with  native  institu- 
tions. Thus  the  District  Councils,  more  than  two  hundred 
in  number,  formed  to  assist  the  District  Magistrates,  and 
the  seven  hundred  municipalities  of  British  India,  have,  as 
compared  with  the  ancient  institutions  of  the  village,  a  some- 
what artificial  air. 

Recent  Announcements 

Still,  the  facts  that  they  exist  and  do  a  certain  amount  of 
work,  is  a  step  gained ;  and  it  is  tolerably  clear  from  the 
recent  pronouncements  of  the  Imperial  authorities,  especially 
the  formal  resolutions  of  the  Government  of  India  issued  in 
May,  1915,  and  the  still  more  recent  statements  in  the 
Imperial  Parliament  and  by  the  Viceroy  in  India,  that  the 
policy  of  Lord  Ripon's  Government  will,  in  the  near  future, 
be  extended  to  the  humbler  sphere  of  village  institutions. 
The  resolutions  of  1915  very  wisely  determined  to  leave  the 
actual  introduction  of  reforms  to  the  Provincial  Legislative 
Councils  (p.  83),  and  deprecated  the  setting  up  of  uniform 
and  compulsory  systems ;  for  variety  is  of  the  essence  of 
successful  local  institutions. 


RESULTS    OF    BRITISH    POLICY  359 

Egyptian  Developements 

The  policy  thus  adopted  in  British  India  has  also  been 
recently  developed  under  British  auspices  in  Egypt,  where 
Mohammedan  mudirias,  or  provinces,  subdivided  into  dis- 
tricts, and  again  into  villages,  have  been  made  the  basis  of 
a  scheme  of  self-government,  beginning  with  the  subject  of 
education,  and  where  there  are  already  thirteen  urban 
municipalities.  At  any  rate,  enough  has  been  done  in  this 
direction  to  show,  that  the  often  expressed  British  policy  of 
governing  alien  races  so  as  to  enable  them  ultimately  to 
govern  themselves,  is  no  mere  empty  theory. 


INDEX 


Act  op  Parliament,  "adoptive,"  311, 
312,  339;  dispensing  with,  195,  214; 
generally,  15,  16;  public  and  private, 
15,  142;  suspension  of,  214. 

Addresses  to  Crown,  162. 

Adjournment,  motions  for,  157. 

Administration,  generally,  17-20. 

Admiral,  The  Lord  High.  See  Admi- 
ralty. 

Admiralty,  Board  of,  composition  of, 
167,  168;  creation  of,  167;  organiza- 
tion of,  167-169;  powers  of,  168- 
170;  reforms  in,  168;  working  of, 
168-170. 

Admiralty,  Court  of,  168. 

Adoptive  Acts,  311,  312,  339. 

African  Protectorates,  91,  92. 

Agents-General.  See  Dominions, 
Self-governing. 

Agricultural  Rates  Act,  324. 

Agriculture,  Board  of,  233,  234. 

Air  Board,  creation  and  organization 
of,  185,  186. 

Air  Force,  185. 

Alien,  cannot  own  British  ship,  5;  de- 
portation of,  213;  not  liable  for  mili- 
tary service,  6;  private  but  not  pub- 
lic rights,  5;  wife  of,  5. 

Allegiance,  character  of,  5;  extent,  5; 
liabilities  of,  5,  6;  renunciation  of,  5. 

Ambassadors,  215. 

Appeal,  Courts  of.  See  Courts  of 
Justice. 

Appeal,  from  Scottish  courts,  273; 
right  of,  254,  259,  262,  266,  267,  268. 

Appropriation  Bills,  155,  156. 

Archdeacons,  285,  297. 

Armies,  Colonial  and  Indian,  186- 
188;  the  New,  182. 

Army  Act,  the.  See  Army,  the  Regu- 
lar. 

Army  Council,  composition  of,  179, 
180;  functions  of,  179, 185;  origin  of, 
179. 

Army,  Feudal,  the,  171,  172. 


Army,  Regular,  billeting  of,  173;  Bill 
of  Rights  and,  173,  174;  Cabinet 
System  and,  100;  Commander-in- 
Chief  of,  178-180;  commissions  of 
array  and,  172,  173;  control  of,  by 
Pariiament,  177-181;  Crown  and, 
100;  discipline  of,  under  Army  Act, 
175;  disciphne  of,  under  Articles  of 
War,  176;  Mutiny  Acts  and  the, 
174-176;  Parliamentary  character 
of,  173;  Petition  of  Right  and,  173; 
recruiting  of,  181;  reforms  in,  178- 
181;  Secretary  at  War  and,  177,  178; 
Secretary  for  War  and,  178-180; 
voluntary  character  of,  181. 

Army  Reserve,  the,  183. 

Army,  Territorial,  Army  Act  and  the, 
175;  Associations,  184,  185;  num- 
bers of,  185;  origin  of,  6-7;  reserve 
forces  and,  182-185. 

Arrest,  without  warrant,  250,  251. 

Articles  of  War,  167,  176,  177. 

Assizes,  212,  256,  264. 

Attainder,  Acts  of,  30. 

Attorney-General.  See  Law  Officers. 

Australia,  federation  of,  57,  58;  re- 
sponsible government  in,  59,  60; 
Second  Chambers  in,  60,  61;  States 
of,  58. 

B 

Bagehot,  Walter,  112. 

Ballot,  the,  134. 

"Bangorian"  controversy,  295. 

Bank  of  England,  204,  205,  206. 

Bank  of  Ireland,  205,  206. 

Becket,  quarrel  with  Henry  II,  289, 
290. 

Benefit  of  clergy,  290. 

Bill  of  Rights,  standing  army  and,  174; 
character,  4;  "dispensing"  power  of, 
195,  214;  Parliament  and,  132;  peti- 
tions and,  162;  "suspending"  power 
of,  214.  ^ 

Billeting.    See  Army,  the  Regular. 

Bills  (Parliamentary).  See  Act  of 
Parliament. 


362 


INDEX 


Binding  over,  253. 

Bishop,  appointment  of,  see  Church, 
English;  in  Parliament,  see  Lords, 
House  of. 

Bishoprics,  creation  of  new,  302. 

Black  Death,  effect  of,  on  labour,  307. 

Board  of  Agriculture.  See  Agricul- 
ture, Board  of. 

Board  of  Control  (for  India),  76. 

Board  of  Education.  See  Education, 
Board  of. 

Board  of  Trade.  See  Trade,  Board 
of. 

Board  Schools.    See  Education. 

Borough,  aldermen,  337;  auditors,  338; 
civil  courts,  343;  a  corporation,  335; 
councils,  337-339;  county,  see  Bor- 
oughs, County;  electors  (bur- 
gesses), 337,  338;  finance,  340,  341; 
magistrates,  342,  343;  mayor,  336; 
officials,  338,  339;  rates,  341;  repre- 
sented in  county  council,  329,  330. 

Boroughs,  counties  of  cities  and  towns, 
343,  344;  county,  333,  344;  in  the 
Dominions,  353-355;  Municipal, 
aee  Borough;  origin  of,  306;  Parlia- 
mentary, 126,  127,  130,  131;  police, 
334,  341,  342;  Quarter  Sessions,  334, 
341;  reform  of,  335. 

British  India.    See  India,  British. 

British  residents,  88,  89. 

British  Settlements  Act,  91,  277. 

Budget,  31,  150-156. 

Burgesses,  municipal,  338;  Parlia- 
mentary, 125;  and  see  Commons, 
House  of. 

Burghs.    See  Scotland. 

Burke,  Edmund,  202,  206. 

By-laws,  borough,  336,  339,  340; 
county,  336;  district,  322. 


Cabinet  System,  advice  to  Crown, 
39;  conventional  character  of,  99; 
effect  on  Kingship,  4;  formation  of, 
104;  origin  of,  31-33,  93-100; 
principles  of,  99-116;  relations  with 
Parliament,  148. 

Canada,  acquisition  of,  56,  57;  pro- 
vincial legislation  in,  57,  62  n.;  re- 
sponsible government  in,  59;  Second 
Chambers  in,  60. 

Canon  Law,  264,  293,  294,  295,  296. 

Canterbury,  See  of,  291. 

Cape  of  Good  Hope,  56,  355. 


Caucus,  the,  114,  115. 

Chamberlain,  Lord,  and  Lord  High. 
See  Household  Offices. 

Chancellor,  Lord  High.  See  Lord 
High  Chancellor. 

Chancellor  of  the  Duchy  of  Lancaster, 
224,  and  see  Budget. 

Chancellor  of  the  Exchequer,  198,  199, 
200. 

Chancery,  Court  of,  24,  220,  221,  222; 
office  of,  221. 

Channel  Islands,  55,  69,  301,  352. 

Charles  II,  93,  94,  95. 

Chartered  Companies,  91. 

Chiltern  Hundreds,  110. 

Churches,  Established: 

English,  celibacy  in,  286;  courts  of, 
287,  293,  298,  299;  in  India,  301; 
prelates,  election  of,  289,  296,  297 
(and  deans) ;  prelates,  creation  of 
new,   302;   quarrel   over  investi- 
tures, 288;  ritual  of,  296;  connec- 
tion with  Rome,  285,  286,  287; 
separation  from  State,  286,  287; 
tithes,    285,    287;    uniformity   of 
worship  in,  297,  298;  William  the 
Conqueror's  rules  for,  287. 
Irish,  301. 
Scottish,  300. 
Welsh,  45,  122. 

Circuits  (judicial).    See  Assizes. 

Cities,  343,  344,  356. 

Citizens  and  burgesses.  See  Com- 
mons, House  of. 

Civil  justice,  administration  of,  260- 
271;  nature  of,  248,  249. 

Civil  List,  198,  205,  206. 

Clarendon,  Lord,  95. 

Clergy,  convocations  of,  see  Convoca- 
tion; House  of,  118-120;  liability  to 
trial,  290;  taxation  of,  118,  291, 
292. 

Clericis  Laicos,  Bull,  292. 

Clerk  of  the  Peace,  329. 

Coalition  Ministries,  111. 

Coast  Guard,  171. 

Coke,  Sir  Edward,  16. 

Colonial  forces,  59,  73. 

Colonial  Laws  Validity  Act,  66,  277. 

Colonial  Office,  history  of,  68-70. 

Colonies,  acquisition  of,  2,  3,  17; 
Crown,  see  Crown  Colonies; 
finance  of,  71;  generally,  17;  inde- 
pendence of,  35,  36;  loss  of  Ameri- 
can, 69;  treasuries  of,  208,  209. 

Commissions  of  Array,  172,  173. 


INDEX 


363 


Committees  (informal)  in  Parliament, 
159. 

Common  law,  13,  24,  57. 

Commons,  House  of,  committees  of, 
144,  145;  constituencies  of,  119,  124- 
128,  161,  1G2;  disabilities  for  elec- 
tion to,  119,  120;  duration  of,  133; 
elections  to,  133-138;  6nanciai 
privileges  of,  148-151;  franchise  for, 
128-132;  local  character  of,  117; 
origin  of,  24;  petitions  to,  161,  162; 
summoning  of,  132. 

Comptroller  and  Auditor-General, 
204-206. 

Consolidated  Fund,  Bills,  154,  155; 
services,  205,  206. 

Consols,  203. 

Constable,  Lord  High,  226  n. 

Constable.  See  Police;  Household 
Offices. 

Constitutional  monarchy,  develop- 
ment of  in  Empire,  21-36;  generally, 
see  Chapter  ii;  nature  of,  21. 

Consuls,  218. 

Convocations,  constitution  of,  291; 
powers  of,  295,  296. 

Cornwall,  Duchy  of,  127. 

Coroner,  appointment  of,  327;  inquests 
by,  255,  327. 

Corrupt  Practices  Act,  137. 

Council.  See  County  Councils; 
Parish  Councils;  Privy  Council. 

Council  of  State  (Commonwealth),  94. 

Counties,  in  the  Dominions,  353;  ori- 
gin of,  305,  306,  325. 

County  Associations,  7,  184,  185. 

County  constituencies,  125,  126. 

County  Councils,  aldermen  of,  331; 
committee  of  assessment  of,  333; 
control  of 'smaller  units  by,  309,  310, 
311,  331,  332;  creation  of,  329,  330; 
Dominion,  354;  election  of,  329- 
331;  main  roads  and,  331;  powers 
and  duties  of,  331,  332;  in  Scotland, 
349;  Treasury  grants  and,  324,  332. 

County  Courts.    See  Courts,  County. 

County  6nance,  332-334. 

County  officials,  331. 

County  rates,  333. 

Courts  martial,  194,  195. 

Courts  of  Justice,  Admiralty,  264; 
Appeal,  267,  268,  275;  Australian, 
280,  281;  Canadian,  279,  280;  Cen- 
tral Criminal  ("Old  Bailey"),  256; 
Chancery,  24,  263,  264;  Civil  Bill, 
275;   Colonial,   276-282;    Common 


Pleas,  263;  County,  224,  260-263, 
275,  280;  Criminal  Appeal,  259;  for 
Crown  Cases  Reserved,  259; 
Divorce,  264;  ecclesiastical,  see 
Churches,  English  Established; 
enquiry  (naval),  170;  Exchequer, 
263;  federal,  278,  279;  generally,  10, 
11;  High,  263,  264,  274;  Imperial, 
see  Judicial  Committee;  Indian, 
281-283;  industrial,  280;  Irish,  274- 
276;  of  King's  Bench,  263;  local, 
265;  New  Zealand,  279;  Probate, 
264;  royal,  see  King;  Scottish,  10, 
272-274;  Session,  272,  273;  of  sum- 
mary jurisdiction,  253,  254;  of  Vice- 
Admiralty,  277,  280. 

Crimean  War,  70. 

Criminal  justice,  administration  of, 
247-260;  British  principles  of,  260, 
277,  278;  nature  of,  247,  248. 

Cromwell,  Oliver,  49,  94,  173. 

Crown.    See  King. 

Crown  Colonies,  70-74. 

Crown  Lands,  18,  201. 

Cumulative  vote,  355,  356. 

Customs,  Board  of,  200. 

Customs  duties,  152,  153,  200,  201. 

D 

Danegeld,  200. 

Deans,  appointment  of.  See  Church, 
English. 

Death  Duties,  152,  201. 

Defence  of  the  Realm  Acts,  179. 

Delolme,  on  the  British  Constitution, 
112. 

Director  of  Public  Prosecutions,  225. 

Disease,  public  treatment  of,  320. 

Dispensing  power,  195,  214,  294. 

Disqualifications,  Parliamentary,  136. 

Distress  Committees  (under  Act  of 
1905),  317,  322,  348. 

District  (sanitary),  in  the  Dominions, 
353;  elections  to,  318;  generally, 
306;  powers  and  duties  of,  318-323; 
port,  318;  rates,  323,  324;  rural,  318; 
urban,  318. 

District,  and  District  Magistrate.  See 
India,  British. 

Divine  Right,  doctrine  of,  32. 

Domains,  royal.    See  Crown  Lands. 

Domesday  Book,  200. 

Dominions,  Self-governing,  Agents- 
General  of,  64,  65;  courts  of  justice 
in,  62;  forces  of,  186,  187;  generally. 


364 


INDEX 


55;  High  Commissioners  of,  64,  65; 
Imperial  ties  of,  63-67;  legislation 
of,  65,  66;  local  government  in,  62, 
352,  353;  Ministry  of,  58-61;  Parlia- 
ments of,  60. 
Drains.    See  Sewers. 


E 


Eael  Marshal.  See  Household 
Offices. 

East  India  Company,  The,  75-77. 

Education,  public.  Acts,  237,  238,  240, 
243;  Board  of,  240;  Board  Schools, 
238,  239;  committees,  241,  243;  com- 
pulsory, 238;  county  councils  and, 
332;  Department  of,  237,  238,  239; 
elementary,  236-243;  endowed 
schools,  236;  grants  for,  237;  higher, 
243;  inspection  of  secondary  schools, 
244;  non-provided  schools,  242,  243; 
provided,  242;  public  schools,  235, 
244;  rate,  322;  School  Boards,  238; 
school  managers,  238,  242;  universi- 
ties, 235,  236;  urban  councils  and, 
321;  voluntary  schools,  235. 

Edward  I,  clergy  and,  292;  Parliament 
and,  25. 

Egypt,  army  of,  90;  Consuls-General, 
90;  High  Commissionership  of,  90; 
joint  control  in,  89,  90;  Kliedive  of, 
90;  legal  reforms  in,  90;  local  govern- 
ment in,  359;  self-government  in,  90. 

Election,  expenses,  133;  ofiEences,  136, 
137;  petitions,  trial  of,  136-138. 

Electoral  Roll,  134,  135. 

Enclosures,  307,  308. 

Equity,  24,  221. 

Estimates,  the,  151,  156;  supplement- 
ary, 156. 

Evidence,  in  civil  cases,  266,  267;  in 
criminal  cases,  257,  258. 

Exchequer,  Chancellor  of,  see  Chan- 
cellor OF  THE  Exchequer;  Court 
of,  199,  200;  Dialogue  of,  28,  196; 
officials  of,  196;  origin  of,  28;  records 
of,  196,  197. 

Exchequer  and  Audit  Department, 
205,  223. 

Exchequer  Contribution  Account,  332. 

Executive,  control  of,  26,  27;  generally, 
8,  9,  17-20. 

Executive  Council,  in  Crown  Colonies, 
72-74;  in  British  India,  79,  83;  in 
self-governing  Dominions,  60,  61. 

Extradition  proceedings,  212. 


F 

Faggot  Votes,  129. 

Federation,  Colonial,  in  Australia,  57, 
58;  in  Canada,  57,  58;  generally,  57, 
58;  in  South  Africa,  57,  58. 

Feudal  influences,  22. 

Finance  Bills,  155. 

Foreign  Jurisdiction  Acts,  88,  92. 

Foreign  policy,  generally,  18. 

Forty  Shilling  Franchise,  128,  129. 

Franchise,  municipal,  see  Borough 
Council;  County  Council;  Dis- 
trict Council;  Parish  Council; 
Parliamentary,  see  Commons,  House 

OF. 

G 

General  Warrants,  34,  35. 
Gibson  Bowles  Act,  152-154. 
Government  legislation,  15,  143. 
Government  of  Ireland  Act,  54. 
Governors,  Colonial,  63,  64,  70,  72,  73; 

Indian,  83. 
Great  Seal,  197,  220. 
Grenville's  Act,  137. 

H 

Habeas  Corpus,  33,  34,  193,  271. 

Hanoverian  line,  31,  32. 

Hereditary  title,  influence  of,  21-24. 

High  Commission,  Court  of,  11. 

High  Commissioners.  See  Dominions, 
Self-governing  . 

Highways.  See  District  (sanitary); 
County  Councils. 

Household  Ofiices,  functions  purely 
ceremonial,  226;  some  of  great  an- 
tiquity, 226;  Earl  Marshal  and 
Lord  High  Chamberlain  now  heredi- 
tary, 226;  office  of  Lord  High  Con- 
stable in  abeyance,  226  n.;  Lord 
Chamberlain  and  Lord  Steward  of 
Household  more  practical  offices, 
226;  King's  attendants  in,  226;  ap- 
pointment of  Lord  High  Steward, 
227. 

Housing  and  Town  Planning,  321. 

Housing  of  the  working  classes,  321. 

Hundred  (local  unit),  305,  306. 


Impeachments,  29,  30,  163. 
Imperial  Conference,  the,  115,  116. 
Imperial  Defence,  Committee  of,  188. 


INDEX 


365 


Imperial  legislation,  66,  67. 

Imperial  Service  troops,  88,  187. 

Income  Tax,  153,  £01,  202. 

Indemnity  Acts,  193,  194. 

India,  acquisition  of,  3,  74,  75. 

India,  British,  armed  forces  of,  86,  87, 
187;  Civil  Service  of,  81,  82;  Coun- 
cil of,  77,  78;  Crown  government  in, 
75-77;  districts  of,  358;  finance  of, 
84,  85,  208,  209;  Governor-General 
of,  78;  Governor-General  of,  in 
Council,  79,  88;  Legislative  Coun- 
cils of,  80,  81,  83,  84;  local  govern- 
ment in,  356-358;  principles  of  gov- 
ernment of,  84-87;  provincial  gov- 
ernment of,  83,  84,  357,  358;  re- 
sponsibility of  officials  in,  85,  86; 
Ripon,  reforms  of  Lord,  358;  Secre- 
tary of  State  for,  78;  village  institu- 
tions in,  356-358. 

India,  Native,  87-89,  187. 

Indictment.  See  Trial  on  indict- 
ment. 

Infancy  of  monarch,  22,  28. 

Interregnum,  meaning  of,  21. 

Ireland,  acquisition  of,  2;  "Castle" 
system  in,  52,  53;  Church  of,  51, 
122;  county  councils  in,  351;  coiu-ts 
of  justice  in,  274,  275;  Cromwell  in, 
49;  Declaratory  Act,  50;  educational 
system,  53;  Home  Rule  in,  54;  law 
courts  of,  48,  54 ;  Lord  Chancellor  of, 
223;  Navigation  Acts  and,  50;  Par- 
liamentary representation  in,  128; 
Parliaments  of,  48;  Poor  relief  in, 
351;  Poyning's  Laws,  48;  Privy 
Council  of,  51,  351;  Reformation  in, 
49;  sanitary  districts,  351;  treasury 
of,  53;  plantation  of  Ulster,  49; 
Union,  17,  51-53. 


Judges,  common  law,  13;  duties  of, 
258,  267,  269;  immunity  of,  271, 
272;  influence  of,  24;  security  of,  11, 
102,  283. 

Judicial  Committee  of  the  Privy 
Council,  62,  124,  269,  270. 

Judicial  privilege.  See  Judges,  im- 
munity OF. 

Juries  (financial),  200. 

Jury,  challenge  of,  257;  Grand,  254, 
255;  in  civil  cases,  266;  introduc- 
tion of,  10,  11;  Petty,  257;  Scottish, 
272;  verdict  of,  258,  266,  272,  273. 


Justices'  Clerks,  329. 
Justices  of  the  Peace.     See  Magis- 
trates. 

K 

King,  The,  as  administrator,  17-20; 
allegiance  to,  5;  assent  to  legislation, 
15 ;  change  in  character,  3,  4 ;  courts 
of  justice  of,  9-12,  24,  and  Chapter 
XI.  Duties:  administrative,  17-20, 
executive,  8,  9,  judicial,  9-12,  legis- 
lative, 12,  13,  military,  6,  8;  infancy 
of,  22,  28;  as  an  institution,  23;  in- 
ternational position  of,  8,  18,  216; 
origin  of,  1;  personal  character  of, 
37,  38;  personal  powers  of,  36-41; 
Regulations  of  (Army),  see  Articles 
OF  W.ar;  rights  of,  39-41;  title,  1,  2. 

King's  Counsel,  248  n. 

Knights  of  the  Shire.  See  Commons, 
House  of. 


L.iBOUR  Exchanges,  229. 

Lancaster,  Duchy  of.  See  Palati- 
nates. 

Land  Values  Duties,  201. 

Law  Lords,  123,  124,  268,  269. 

Law  Officers,  224,  225,  259. 

Legislation,  assent  to  Colonial,  65; 
generally,  14,  15;  and  see  Act  of 
P.arliament. 

Licenses,  armorial  bearings,  201 ;  dogs, 
201;  liquor,  201,  328;  male  servants, 
201;  sporting,  201;  vehicles,  201. 

Loans,  Government,  202,  203. 

Loans,  Local  (Acts),  324,  333. 

Local  government,  in  the  Colonies, 
304,  305;  in  the  Dominions,  352- 
356;  in  England,  304;  generally. 
Chapters  xiii,  xiv;  in  India,  356- 
358;  nature  of,  303,  304;  and  see 
County;  District;  Parish;  Union. 

Local  Government  Board,  constitu- 
tion of,  230;  control  of  local  authori- 
ties, 232,  233;  Old  Age  Pensions  and, 
231 ;  Poor-reHef  and,  230,  231 ;  public 
health  and,  231,  232,  321,  322. 

Local  Government  Register,  309,  338, 

Local  Improvement  Boards,  309,  312, 
313. 

Local  Taxation  Account,  324. 

London,  City,  aldermen  of,  345;  com- 
mon council  of,  345;  income  of,  346; 
Lord  Mayor  of,  345;  officials  of,  345, 
346;  sheriffs  of,  346. 


366 


INDEX 


London,  County,  council  of,  346,  347; 
creation  of,  346,  347;  educational 
duties  of,  347;  expenditure  of,  347; 
sanitary  duties,  346,  347. 

Long  Parliament,  34. 

Lord  Chief  Justice,  124,  267,  268. 

Lord  High  Chancellor,  124,  196,  197, 
220-223,  270. 

Lord  Justice  Clerk,  272,  273. 

Lord  Justice  General,  272. 

Lord  Lieutenants,  magistrates  and, 
249;  military  character,  6,  7;  Terri- 
torial forces  and,  7,  184,  185. 

Lord  President  of  the  (Privy)  Coun- 
cil, 224,  270. 

Lord  President  of  the  Court  of  Session, 
272,  273. 

Lord  Privy  Seal,  223. 

Lords,  House  of.  Lords  of  Appeal  in, 
123,  124,  268,  270;  bishops  in,  121, 
122;  disagreements  with  Commons, 
145-148;  hereditary  members  of, 
120,  121;  Irish  representative  peers 
in,  123;  life  members  of,  121,  122; 
Money  Bills  and,  149,  150;  origin  of, 
24,  25;  Parliament  Act  and,  150; 
Scottish  representative  peers  in,  122, 
123,  Speaker  of,  223. 

Lords,  House  of  (Judicial),  civil  cases 
in,  268,  269;  criminal  cases  in,  259; 
Ireland,  appeals  from,  275;  judges 
attending,  268,  269;  Scotland,  ap- 
peals from,  273. 

Lords  Justices  of  Appeal,  English,  267; 
Irish,  275. 

M 

Magistrates,  administrative  duties 
of,  328;  appointment  of,  222,  224, 
249; borough,  342,  343; county,  249; 
ex  officio,  249,  250;  liquor  licenses 
and,  328;  police  and,  328;  Poor-law 
and,  308,  328;  proceedings  before, 
249-254;  stipendiary,  249,  343. 

Man,  Isle  of,  55,  301. 

Manor,  307. 

Marchers,  Lords,  44. 

Marines,  the  Royal,  181. 

Martial  law,  Habeas  Corpus  and, 
193;  Acts  of  Indemnity  and,  193;  na- 
ture of,  189-195;  Petition  of  Right 
and,  173;  position  of  soldier  under, 
193-195;  prohibition  of,  173;  respon- 
sibility for  exercise  of,  190-193; 
reading  of  Riot  Act,  192;  royal  par- 
don and,  194,  195. 


Master  of  the  Rolls,  267,  268. 

Metropolitan  Asylums  Board,  348. 

Metropolitan  boroughs,  duties,  of,  348; 
government  of,  347,  348;  origin  of, 
347. 

Metropolitan  Water  Board,  349. 

MiHtary  Law,  189,  190. 

Military  Service  Acts,  182. 

Militia,  ancient  institution,  6,  7;  bal- 
lot, 6;  changes  in  1907,  7;  Colonial, 
7;  foreign  service,  6;  Irish,  7;  reserve, 
183;  Scottish,  7. 

Ministerial  responsibility,  generally, 
4 ;  and  see  Cabinet  System. 

Ministers  (diplomatic).  See  Ambassa- 
dors. 

Ministry,  The,  Control  of,  by  Parlia- 
ment, 148,  154;  motions  for  adjourn- 
ment and,  157,  158;  questions  in 
Parliament  and,  157;  resignation  of, 
159;  resolution  of  want  of  confi- 
dence in,  158. 

Money  Bills,  146,  147,  150. 

Monmouth,  county  of,  45,  125. 

Montesquieu,  on  the  British  Constitu- 
tion, 112. 

Mortmain,  Rule  of,  310  n. 

Much  Wenlock,  127. 

Mudirias.  See  Egypt,  local  govern- 
ment IN. 

Municipal  Corporation  Acts.  See 
Boroughs. 

Municipalities.    See  Boroughs. 

Mutiny  Acts.  See  Army,  the  Regu- 
lar. 

N 

Nationality,  British  acquisition  of,  5- 

Navigation  Acts,  50,  71. 

Navy,  the  Royal,  Administration  of, 
166;  Articles  of,  167,  168;  constitu- 
tional character  of,  167,  168;  courts 
martial  in,  170;  discipline  of,  170, 
171;  Dominion  contributions  to, 
187;  impressment  in,  166;  liability 
of  members  to  civil  courts,  170;  ori- 
gin of,  165,  166;  reserves  of,  171. 

Northern  Territory  (Australia),  279, 
280. 

North-West  Territories  (Canada), 
279. 

O 

Officials  (Crown),  influence  of, 
27;  liability  to  impeachment,  29,  30; 
permanent,  96,  102. 


INDEX 


367 


Old  Age  Pensions,  226,  231,  314,  317. 
Ontario,  parishes  in,  352;  reeves  in, 

354. 
Orders  in  Council,  12,  14,  16. 
Overseers  of  the  Poor,  appointment  of, 

310;  duties  of,  310,  311;  origin  of, 

307;   superseded  by  "Guardians," 

312,  313. 

P 

Palatinates,  Chester,  125;  Durham, 
10,  125;  Lancaster,  125,  127. 

Pardon,  prerogative  of,  213,  214. 

Parish,  Canadian,  352;  Councils,  see 
Parish  Councils;  decay  of,  309; 
poor-law  unit,  307,  308;  rural,  309- 
312;  urban,  312. 

Parish  Councils,  allotments  and,  310; 
charities  and,  310;  election  of,  309; 
institution  of,  309;  powers  of,  310, 
311;  rural  parishes,  confined  to, 
312. 

Parish  Meetings,  members  of,  311; 
powers  of,  311;  rural  parishes  in, 
311. 

Parliament,  Act  of,  1911,  133,  146, 
147. 

Parliament  (Imperial),  adjournment 
of  Houses  of,  164;  annual  sessions  of, 
132;  audit  by,  206,  207;  Bill  of 
Rights  and,  132;  Cabinet  and,  109- 
111;  character  of,  25,  26;  control  of 
finance  by,  207;  control  of  Ministers 
by,  29,  30;  dissolution  of,  163;  dura- 
tion of,  132,  133,  146;  elections  to, 
see  Commons,  House  of;  legislation 
of,  14,  25,  26,  141-149;  motions  for 
adjournment  in,  157,  158;  origin  of, 
3,  4,  14,  15,  24,  25;  power  to  dispose 
of  Crown,  3,  4;  prorogation  of,  164; 
questions  in,  157;  representation  in 
(generally),  139,  140;  revenue  pow- 
ers of,  30-32;  secret  sessions  in,  159, 
160;  sovereignty  of,  25-27;  struc- 
ture of,  see  chapter  vi;  taxation 
and,  30,  31,  132;  work  of,  see 
Chapter  vii. 

Parliament  (Irish),  17. 

Parliament  (Scottish),  16,  17. 

Party  System,  the,  96-99;  Cabinet 
and,  110-112;  defects  of,  114-116; 
Home  Rule,  98;  Imperial  politics 
and,  115,  116;  Jacobites,  97;  La- 
bour, 99;  merits  of,  113,  114;  or- 
ganization of,  138-140;  Radical,  98; 
Tory,  97,  98;  Whig,  97,  98. 


Passports,  217. 

Paymaster-General,  205,  206. 

Peace,  Justices  of  the.  See  Magis- 
trates. 

Peers,  disabilities  of,  136;  privileges  of, 
162,  163. 

Petition  of  Right,  The,  173,  195. 

Petitions  of  right,  211. 

Petitions,  Parliamentary,  15,  161, 
162. 

Petty  Sessions.    See  Magistrates. 

Pipe  Roll,  196. 

Place  Acts,  96,  109,  110. 

Plague,  the  Great.    See  Black  Death. 

Plural  Voting,  131. 

Police,  general  character,  8,  9;  in- 
spection by  Home  Office,  211. 

Polling.    See  Commons,  House  of. 

Poor,  Guardians  of  the.  Assessment 
Committee  of,  316;  district  of 
(Union),  312,  313;  election  of,  312, 
313;  indoor  relief  and,  314;  insti- 
tuted, 308;  Metropolitan,  348;  out- 
door relief  and  313,  314;  powers  and 
duties  of,  313-316;  registration  of 
births,  deaths,  and  marriages,  315; 
vaccination  and,  314,  315. 

Poor  Law,  officials,  315;  origin  of,  307; 
reform  of,  308;  in  Scotland,  350;  un- 
popularity of,  316,  317. 

Poor-rates,  appeals  from,  316;  assess- 
ment and  collection  of,  316;  gener- 
ally, 307-309;  valuation  list,  316. 

Popes.    See  Rome. 

Postmaster-General,  225,  226. 

Poynings'  Laws,  17,  48,  49. 

Prerogative  writs,  265. 

Prime  Minister,  the,  104,  105,  107- 
109. 

Prisons,  212. 

Private  Acts  (of  ParUament),  142, 
147. 

Private  Member's  Bill,  143. 

Privy  Council,  Colonies  and,  68,  69; 
educational  grants  and,  237;  future 
of,  93,  94,  95;  judicial  committee  of, 
see  Judicial  Committee;  meetings 
of,  103,  104;  membership  of,  105, 
106;  origin  of,  27.  See  also  Orders 
IN  Council. 

Privy  Seal.    See  Lord  Privy  Seal. 

Proclamations.  See  Orders  in  Coun- 
cil. 

Progress,  reporting  (in  Parliament), 
144,  154,  155. 

Prohibition,  writs  of,  293. 


368 


INDEX 


Protectorates,  British,  87-92,  218. 

Provinces,  of  British  India,  83,  84;  of 
Canada,  57,  58;  of  South  Africa,  57, 
58. 

Provisional  Orders,  147,  148. 

Public  Acts  (of  Parliament),  142- 
148. 

Public  health.  See  District  (sani- 
tary). 

Public  Schools.    See  Education. 

Public  Works  Loans  Commissioners, 
324. 

Q 

Quarter    Sessions,    boroughs    and, 

342,  343,  344;  in  Dominions,  280; 

licensing  and,   328;   trial  at,   256, 

257. 
Quebec,  mayors  in,  354;  parishes  in, 

352. 
Questions  in  Parliament,  157. 


R 


Rates.  See  Borough;  County;  Dis- 
trict; Education;  Parish;  Poor. 

Recorder,  211,  256,  343. 

Reform  Acts,  of  1832,  125,  128,  130; 
of  1867,  129,  130;  of  1883-1884,  129, 
130;  of  1918,  130,  131. 

Reformation,  legal  changes  at,  293- 
298. 

Registrar-General,  315. 

Religious  toleration,  298. 

Report  stage,  145. 

Reserve  Forces.  See  Armt,  Terri- 
torial. 

Responsible  Government,  in  Australia, 
61;  generally,  58-60. 

Returning  officers,  128,  133. 

Revenue  (royal),  audit  of,  206,  207; 
collection  of,  199-202;  expenditure 
of,  204-206. 

Rights,  Bill  of.    See  Bill  of  Rights. 

Riot  Act,  8,  9,  192. 

Roads.    See  District  (sanitary). 

Roman  Law,  264. 

Rome,  appeals  to,  293;  ecclesiastical 
influence  of,  285,  286;  jurisdiction  of 

293,  294;  taxation  of  clergy  by,  292, 

294,  295. 

Rotten  boroughs,  127. 

Royal  Flying  Corps.    See  AiE  Force. 

Royal  Naval  Air  Service.     See  Air 

Force. 
Rule  of  Law,  34,  35. 


S 


Sanitary  Officials,  323. 

School  Board.    See  Education. 

Scotland,  Board  of  Agriculture  of,  47; 
Board  of  Fisheries  of,  48;  burghs  in, 
350,  351;  Church  of,  47,  122;  courts 
of  justice  of,  272-274;  educational 
system  of,  47,  350;  juries  in,  272; 
law  and  law  courts,  46;  local  govern- 
ment in,  349;  national  character  of, 
46,  47;  parish  councils  in,  350;  Par- 
liamentary representation  of,  128; 
school  boards  in,  350;  Secretary  for, 
47;  separate  Insurance  Commission 
for,  48;  Sheriff's  Courts  in,  273,  274; 
Union  of  Crowns,  2,  3,  46;  Union  of 
Kingdoms,  16,  17,  46,  47. 

Seals  Act,  28,  29,  197,  223. 

Secret  diplomacy,  215-217. 

Secretaries  of  State.  See  State,  Sec- 
retaries OF. 

Secretary  at  War,  177. 

Secret  Sessions  (of  Parliament),  159, 
160. 

Select  vestry.    See  Vestry,  select. 

Self-defence,  right  of,  250. 

Self-governing  Dominions.  See  Do- 
minions, Self-governing. 

Separation  of  powers,  112. 

Settled  poor,  308. 

Settlement,  Act  of,  character,  4;  choice 
of  monarch,  31,  32;  judges'  tenure, 
12,  271;  King's  pardon,  213,  214. 

Sewers,  319,  320. 

Sheriffs  (English),  appointment  of, 
199,  200;  346;  appointment  of 
(London),  346;  decline  of,  326; 
duties  of,  326,  327;  liabilities  of,  326, 
327;  as  returning  officers,  133,  135, 
326. 

Sheriffs  (Scottish),  courts  of,  273,  274; 
sheriff-substitute,  273,  274. 

Ship,  alien  may  not  own  British,  5; 
birth  on  board  British,  5. 

Ship  Money  writs,  165,  166,  200. 

Shire.    See  County. 

Sinecure  offices,  105. 

Solicitor-General .    -See  Law  Officers. 

South  Africa,  provinces  of,  58;  re- 
sponsible government  in,  59;  Second 
Chamber  in,  60;  Union  of,  57,  58. 

Special  Reserve  (Army),  183,  184. 

Speenhamland  Act  (1795),  317. 

Spheres  of  influence,  92. 

Stamp  Duties,  201. 


INDEX 


369 


Standing  Army.   See  Army,  Regular. 

Star  Chamber,  Court  of,  11. 

State,  Secretaries  of.  Air,  185,  186; 
Colonial,  69,  70,  209,  210;  Foreign, 
209,  210,  214-217;  generally,  209- 
211;  Home,  209,  210,  211-214;  In- 
dian, 77,  78,  79,  80,  81,  188;  North- 
ern, 210;  Southern,  210;  War,  70, 
178,  179,  180,  181,  189. 

State  Departments,  liability  to  actions 
281.    Also  see  under  various  titles. 

States,  of  Australia,  58. 

Steward,  Lord  High,  and  Lord.  See 
Household  Offices. 

Stipendiary  Magistrates.  See  Magis- 
trates, Stipendiary. 

Sudan,  the,  90. 

Supply,  Committee  of,  154. 

Supply  services,  205,  206. 

Suspending  power,  214. 


Tacking,  149. 

Territorial  Forces.  See  Army,  The 
Territorial. 

Theodore,  Archbishop,  284,  285. 

Torts,  nature  of,  248. 

Town  Clerk,  338. 

Town  planning,  321. 

Township,  enclosure  of,  306;  feudali- 
zation  of  306,  307;  origin  of,  305, 
334  n.;  and  see  Parish. 

Trade,  Board  of,  69,  227-229. 

Treasurer,  Lord  High,  197. 

Treasuries,  Colonial,  208,  209. 

Treasury,  the.  Bills,  203;  Board  of, 
197,  198;  Budget  and,  151,  152;  col- 
lection of  revenue  by,  199-201;  con- 
trol of,  206-208;  expenditure  by, 
204;  First  Lord  of,  197;  history 
of,  196-199;  Imperial  character 
of,  208,  209;  Junior  Lords  of.  111, 
198;  local  finance  and,  324,  342; 
Lords  Commissioners  of,  197. 

Trial,  on  indictment,  252,  254-259; 
summary,  251,  253. 

Trinity  House,  229. 

Turnpike  trusts,  309. 


U 

Unemployment.    See  Distress  Com- 
mittees. 
Union,  Acts  of.    See  Ireland;  Scot- 

L.\^ND. 

Union,  Poor  Law.  See  Poor,  Guard- 
ians of  the. 

United  Kingdom,  generally,  43-55. 

Universities,  ancient,  235;  modern 
(English),  236;  Parliamentary  rep- 
resentation of,  131;  Scottish,  47. 


Vestry,  increased  duties  of,  307,  308; 

origin  of,  307,  308;  select,  347,  348; 

and  see  Parish. 
Vice-Admiralty  Courts.    See  Courts, 

Vice-Admiralty. 
Victoria,  Queen,  38,  39. 
Volunteers,  British  India,  87;  English, 

7,  182,  183,  184. 

W 

Wages,  fixing  of,  by  magistrates,  328. 

Wales,  acquisition  of,  2;  Church  of,  45; 
education  in,  45;  incorporation  of, 
44,  45;  representation  in  Parlia- 
ment, 45. 

Walpole,  Sir  Robert,  32,  100. 

Watch  rate,  342. 

Water-supply,  320,  321. 

Ways  and  Means,  Committee  of,  153- 
155. 

Welfare  legislation,  214. 

Whips,  111,  139. 

Whitby,  Council  of,  285. 

Woods  and  Forests  (Department  of). 
See  Crown  Lands. 

Working  classes,  housing  of  the.  See 
Housing. 

Works,  Board  of,  229. 

Writs  (royal),  28. 


Yeomanry,  The,  184  n. 
York,  See  of,  291. 


^ 


BRITISH  EMPIRE 


SELF-GOVERNING  PROTECTORATE 

DOMINIONS.  — 

—  Native  Slates  of  India 

""'''''''*  Aden  and  Penm 


CROWN   COLONIES 


Grenada 
British  Giiiar 
SI.  Helena 
British  Hondi 
Hong-Kong 


c 


AA    000  949  111    9 


